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ARINGS
BEFORE THE
JOINT COMMITTEE ON THE
OKGANIZATION OF CONGRESS
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
INTERBRANCH RELATIONS
JUNE 22, 24, 29, 1993
Printed for the use of the Joint Committee on the Organization of Congress
U.S. GOVERNMENT PRINTING OFFICE
70-239«=i: WASHINGTON : 1993
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-041246-3
\i S. Hrg. 103-122
INTERBRANCH REUTIONS
,3;QR3/IN8
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BEFORE THE
JOINT COMMITTEE ON THE
ORGANIZATION OF CONGRESS
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
INTERBRANCH RELATIONS
JUNE 22, 24, 29, 1993
' ^l? 2
7 1993
"^^-asfesa,.
Printed for the use of the Joint Ck)mmittee on the Organization of Congress
U.S. GOVERNMENT PRINTING OFFICE
70-23*!=; WASHINGTON : 1993
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office. Washington, DC 20402
ISBN 0-16-041246-3
JOINT COMMITTEE ON THE ORGANIZATION OF CONGRESS
[Authorized by H. Con. Res. 192, 102d Congress]
SENATE
DAVID L. BOREN, Oklahoma, CoChairman
PETE V. DOMENICI, New Mexico, Vice Chairman
JIM SASSER, Tennessee NANCY L. KASSEBAUM, Kansas
WENDELL H. FORD, Kentucky TRENT LOTT, Mississippi
HARRY REID, Nevada TED STEVENS, Alaska
PAUL S. SARBANES, Maryland WILLIAM S. COHEN, Maine
DAVID PRYOR, Arkansas RICHARD G. LUGAR, Indiana
GEORGE J. MITCHELL, Maine, Ex Officio
ROBERT DOLE, Kansas, Ex Officio
HOUSE OF REPRESENTATIVES
LEE H. HAMILTON, Indiana, Co-Chairman
DAVID DREIER, California, Vice Chairman
DAVID OBEY, Wisconsin ROBERT S. WALKER Peni^ylv^ia
AL SWIFT, Washington GERALD B.H. SOLOMON, New York
SAM GEJDENSON, Connecticut BILL EMERSON, Missouri
JOHN M SPRATT, Jr., South Carolina WAYNE ALLARD, Colorado
ELEANOR HOLMES NORTON, D.C. JENNIFER DUNN, Washington
RICHARD A. GEPHARDT, Missouri, Ex Officio
ROBERT H. MICHEL, Illinois, Ex Officio
G. Kim Wincup, Staff Director
Walter Oleszek, Policy Director
Kelly L. Cordes, Chief Clerk
John F. Deeken, Professional Staff Member
C. Lawrence Evans, Professional Staff Member
Phiup W. Grone, Professional Staff Member
Nicholas P. Wise, Professional Staff Member
Maureen Groppe, Press Secretary
Carol Hardy Vincent, CRS Policy Analyst
Paul Rundquist, CRS Policy Analyst
Mary Lou Smullen, Special Assistant
Shelley Gough, Staff Assistant
Stacey Spevak, Staff Assistant
Marion Millhouse, Staff Assistant
Jo Meuse, Scheduler
Dianne Lambert, NASA Detailee
(II)
CONTENTS
JUNE 22, 1993
Page
OPENING STATEMENT
Hon. David Dreier, a U.S. Representative from the State of California 1
WITNESSES
Hon. Edward Derwinski, former Secretary of the Department of Veterans
Affairs 1
Hon. John Marsh, former Secretary of the Army and former Member of the
House of Representatives 4
Prepared statement 102
Hon. Richard Thornburgh, former Attorney General 25
Prepared statement 153
Administrative responses to Congressional demands for sensitive informa-
tion, a recommendation of the Administrative Conference of the United
States 160
Negotiation for Knowledge: Administrative responses to Congressional de-
mands for information 163
Hon. Paul Volker, former Chairman of the Federal Reserve System 28
Hon. John Brademas, former Majority Whip, U.S. House of Representatives.... 30
Prepared statement 209
JUNE 24, 1993
OPENING STATEMENT
Hon. Lee Hamilton, a U.S. Representative from the State of Indiana 49
WITNESSES
Hon. John Conyers, Jr., a Representative from the State of Michigan 50
Prepared statement 225
Hon. John Glenn, a Senator from the State of Ohio 59
Prepared statement 229
Hon. William Cohen, a Senator from the State of Maine 65
Prepared statement 249
Hon. Carl Levin, a Senator from the State of Michigan 68
Prepared statement 258
The High Cost of Interbranch Confrontation, chapter 4 from the report by a
panel of the National Academy of Public Administration titled Beyond
Distrust, Building Bridges Between Congress and the Executive 263
(III)
IV
APPENDIX
Submitted statement by the Hon. William V. Roth, a Senator from the State
of Delaware
JUNE 29, 1993
WITNESSES
Hon. Robert W. Kastenmeier, former Representative from the State of Wis-
consin .
Page
273
76
276
nrn.Xtricia^M.'walcirJucigerUnited States Court for the District of ^^
Hon. Ale™KozinskirUnit^' States"^ ifor the Ninth District ^83
86
298
Prepared statement •• •. ■.'^i'W'i^'e e
Robert A. Katzmann, president, Governance Institute, Walsh Professor of
Government and Professor of Law, Georgetown University oo
Prepared statement
APPENDIX
Submitted statement of L. Ralph Mecham, director, Administrative Office of
the United States Courts
INTERBRANCH RELATIONS
TUESDAY, JUNE 22, 1993
United States Congress,
Joint Committee on the Organization of Congress,
Washington, DC.
The committee met, pursuant to call, at 2:00 p.m., in Room HC-
05, The Capitol, Senator David L. Boren (co-chairman of the com-
mittee) presiding.
OPENING STATEMENT OF HON. DAVID DREIER, A U.S.
REPRESENTATIVE FROM CALIFORNIA
Mr. Dreier (presiding). The Joint Committee on the Organization
of Congress will come to order.
We are beginning our process of dealing with, the issue of Legis-
lative and Executive Branch relations. Our first panelists for this
afternoon's hearings are John Marsh and Edward Derwinski.
John Marsh served as Secretary of the Army from 1981 to 1980.
Mr. Marsh. 1989.
Mr. Dreier. To 1989. I knew it was a little longer than that, Mr.
Secretary.
And for part of that 10 years served concurrently as Assistant
Secretary for Defense for Special Operations, Low-Intensity Con-
flict. From 1963 to 1971 he served in the U.S. House of Representa-
tives. He was Assistant Secretary of Defense for Legislative Affairs,
Counsel and Deputy Chief of Staff for President Ford. He is cur-
rently a member of the law firm of Hazel and Thomas.
Edward Derwinski served as Secretary of the Department of Vet-
erans Affairs. He was a Member of Congress, and I should say that
I had the privilege of serving with him in the early 1980s, from Illi-
nois, serving from 1959 until 1983 and was the Ranking Member of
the Foreign Affairs Committee from 1977 until he left the Con-
gress.
We are pleased to have both of you here today and anxiously
look forward to hearing your testimony.
Mr. Secretary?
STATEMENT OF EDWARD DERWINSKI, FORMER SECRETARY OF
THE DEPARTMENT OF VETERANS AFFAIRS
Mr. Derwinski. Often the Republican is allowed to come forward
anyway. The comments I would like to make, if I may, are based
obviously on my 24 years of House experience as well as the assign-
ments I had in the Executive Branch.
(1)
When you look at reform of Congress, it includes of necessity the
more effective relationship to the Executive Branch. Now, in the 24
years I served in the House, and I went to battle with departments
and agencies or the White House over constituent matters, I
always had the feeling in the pit of my stomach that as a Congress-
man, and therefore my colleagues were in the same boat, that we
were more of a pain in the neck than an accepted member of a
team when dealing with the Executive.
When I moved over to the Executive Branch at the State Depart-
ment, I found that, if anything, that was an understatement on my
part, and that there is a very definite institutional resentment in
the Executive Branch against what they would consider intrusion
from the Legislative Branch, and which in turn the Legislative
Branch Members considered their right either through committee
jurisdiction or representing their constituents to do battle with the
Executive.
So I think that is there. It is out there, there is nothing much
you can do about it. The legislative oversight process, in my judg-
ment, is the most effective weapon that the Congress has to effec-
tively work with the Executive. But it has been my judgment that
that is the one that the Congress underutilizes or mishandles.
As the Secretary at the VA, for example, I found that the over-
sight committees were interested only in chasing a scandal after
the story had broken. And they were not willing to sit down with
us in advance and work on procedures or work on legislation that
might correct weaknesses in the system.
The second problem that was very clear was the parochial pres-
sure, the legitimate parochial pressure that Members of Congress
exercised. For example, in the VA, again, the Congressmen or the
Senators who have VA hospitals in their States and districts were
the ones I was continually hearing from. They weren't interested
in the department as a whole. They were interested in the institu-
tion in their district or State.
Now, that is legitimate parochialism. But there is a thin line be-
tween legitimate parochialism and overkill when it comes to man-
agement procedures. I can give you some horror stories, Mr. Chair-
man. I will just give you two in particular.
There is one case where a Senator held up for nine months the
confirmation of two of our Assistant Secretaries because we had a
plan to consolidate offices in which 10 employees would have been
moved out of his State. And he was not going to allow that.
We had another case where, again, the consolidation, reorganiza-
tion plan was going to require that 38 people, 38 staff people be
moved out of Dallas, Texas. And I was called before the Texas dele-
gation to explain and justify the terrible, terrible decision by which
38 jobs would be taken out of the State of Texas. I could give you
other examples, but those come to mind easily.
The other issue I saw in the Legislative Branch was, again, the
tendency for Members to focus, and I say this, again, legitimately
so, on the matters within their state and district.
I would commend the Members of the House and Senate who
had the foresight to impose the conditions in the base closing legis-
lation, military base closing legislation, I wish we had something
like that at the VA so we could go over the institutions and the
facilities that we have, streamline then, improve them, improve the
operations, and then submit the plan to Congress on a take-it-or-
leave-it basis the way you do with base closure. I say that knowing
I ran into a brick wall when I proposed it, but it would in fact
make for much better management and much better government.
I also believe that as the power in Congress has shifted rather
dramatically to the Appropriations Committee and subcommittees,
that the authorizing committees ought to be redefined to almost ex-
clusively function as an legislative oversight panel, not after the
fact, and not chasing headlines after some individual episode has
been revealed as mishandled, but in a constructive, positive way,
working with the members of the Executive Branch.
I also believe, Mr. Chairman, that the Congress could play a
much more effective role if legislative oversight rather than dollars
were the first concern of Members, because it is one thing to throw
dollars at it, it is another thing to come along much, much later,
after damage has been done, and take a look at what had hap-
pened.
I find a major gap between the legislative process, the authoriz-
ing process, the appropriation process, and then much, much later,
and usually much too late, is the legislative oversight. I also recom-
mend, and this is falling back on my experience as a Member, that
if there is a practical way that could be devised to somewhat limit
membership on committees, there are too many committees that
are much too large, even so large that even a hearing turns into a
rather ineffective use of time, because when you are sitting there
in a House committee with 30 Members, they get a chance to ask
one or two questions, you give them one or two bland answers, you
really haven't had a very effective hearing. Yet the sheer size of
the committee dictates that.
Shorter, streamlined committees, more emphasis on oversight,
more and more of the base closing, military base closing commis-
sion procedures to apply across the board in government, would be
very obvious processes that I could see.
And last but not least, what we really need, and I put my old
congressional hat on, I really think there ought to be some way to
devise and select a congressional panel to look at the long-term re-
sponsibilities and challenges facing government, not just the
annual appropriations and not just the immediate crises and prob-
lems, but to be able to isolate, actually a committee that could iso-
late itself from the day-to-day pressures, from the current prob-
lems, from the parochialism and the other factors we know exist
there, and take a look at the long-term interest.
I have no precise solution for that other than the feeling, espe-
cially as I saw it in my secretarial post at the VA, that something
like that in the Congress would be an asset to a management in
government, and it would be an area where we could bring togeth-
er our mutual interest in improving the efficiency of the Executive
Branch, its use of the funds you have appropriated to us, and at
the same time permit us to do it without any abnormal interfer-
ence from logical congressional parochial interests.
Thank you, Mr. Chairman. I will yield to Mr. Marsh at this
point.
Chairman Boren (presiding). Thank you very much. I apologize I
was not here when we began.
I welcome you both on behalf of the committee. We are certainly,
I think, privileged to have two witnesses who have had experience
both in the Executive Branch and certainly in the Legislative
Branch as well, as both of you came from the Congress before going
to your Executive Branch responsibilities, you at the Department
of Veterans Affairs, and of course earlier the State Department,
and Mr. John Marsh earlier at the Department of Defense and
then as Secretary of the Army. I had the privilege of working with
Secretary Marsh in both of those areas during my time chairing
the Intelligence Committee.
So we are certainly privileged to have both of you with us today.
I appreciate your comments very much. As we began these three
days of hearings on Executive-Legislative relations, let me an-
nounce to our colleagues as well that our last hearing will be tenta-
tively on July the 1st, and I am pleased to announce that we invit-
ed former Vice President Mondale to be our final witness, sharing
his perspective both from his experience in the Executive Branch
and the Legislative Branch. He has agreed to be our final witness,
so he will be with us on July the 1st.
We have a couple of other invitations outstanding to those who
served at the highest levels of our government, and we will know
shortly whether any of them will be joining us.
Mr. Marsh, again, we welcome you and we appreciate the fact
that you have taken time to be with us.
STATEMENT OF JOHN MARSH, FORMER SECRETARY OF THE
ARMY AND FORMER MEMBER OF THE U.S. HOUSE OF REPRE-
SENTATIVES
Mr. Marsh. Thank you very much, Mr. Chairman, and Members
of the committee.
I have prepared a written statement which I will endeavor to
summarize, if I can just put the statement in the record.
Chairman Boren. That would be fine. We will put your full
statement in the record.
Mr. Marsh. I think yours is an extraordinarily important task. I
would cite that your Staff Director, Kim Wincup, is an extraordi-
nary selection for this post, because I have observed his service in
the Executive Branch of government and it has been very distin-
guished.
As I begin I would tell you as a former Member of Congress and
serving in the Executive Branch, I had no complaints about the
manner in which I was treated ever by either the committees or
Members of the House or Senate. It was enormously helpful. And I
will tell you that my experience of having been a Member of the
House of Representatives in my view was a cornerstone for other
service in the Executive Branch, both in the White House where I
was a counsel to the President and Deputy Chief of Staff and also
several different posts in the Department of Defense, including in
the Department of Army as Secretary.
It has also caused me to reflect upon and have certain observa-
tions about how these two branches relate to one another. And I
not only chaired the Committee for Streamlining the Pentagon at
the direction of Secretary Cheney on legislative reform, but I also
chaired, after I went into private practice, the Institute of Interna-
tional Studies, particularly for the Department of Defense.
I will tell you my first observation is, I think one of the great
things we have lost in recent years is comity, that courtesy that
exists between the branches. And there is a breakdown in the fail-
ure of comity. Anything this committee can do to restore that rela-
tionship, its courtesy between the branches, it is a lubricant I think
that makes the wheels of government turn smoothly.
I would say to you that I think the issues that you are having to
deal with are really much broader than just reform, and I would
suggest to you, and I view as the scope of what you are seeking to
do, the effectiveness in a total sense of the Federal system, because
the rest of the Federal system will hinge in my view upon an effec-
tive Congress.
The cornerstone of our Republic is the Congress of the United
States, and a more effective Congress will produce a more effective
government. And in the Executive Branch, both in the White
House and the Department of Defense, I have seen instances where
government is not effective. And I commend you for what you are
seeking to do. It is not going to be an easy task. But it is absolutely
essential, in my view.
Power is never easily surrendered, and when it occurs changes in
power are usually associated with war, depression or other trauma.
I see the demand across the country for term limitations as being a
reflection of public unrest that is demanding a revolutionary type
of change. And I am convinced that if this committee does not
come forward with meaningful reform, and if those reforms are not
adopted by the Congress, I predict surely the term limitation
amendment will be adopted, because there is public unrest.
Now, the last time that you addressed congressional reform in
the most meaningful way, although there has been several since
that time, is 1946. In those years since World War II, we have seen
the population of this country increase by 100 million. We have
added six departments of government. We have created agencies
like the CIA, the NSA. We have had a population explosion but we
have also had an explosion of information. And we have been able
successfully to have man walk on the moon. But there has not
been, in my view, a corresponding significant change by the Con-
gress, and I think it is absolutely essential.
I agree with what my colleague, Mr. Derwinski, said. We served
in the House together. I came to have a high regard for him, and I
know of his effective service in the Executive Branch.
I would make the observation, and I think that Ed Derwinski
would too, I believe I could be a much more effective Member of
the Congress today than I was when I was a House Member back
in the 1960s and the early 1970s, because of my Executive experi-
ence, which h£is been very helpful.
When I look at the United States Congress, I always point out to
people and remind them that the American revolution was actual-
ly fought without an Executive Branch of government. The Ameri-
can revolution was prosecuted by the Continental Congress. It ere-
ated the Army, it selected its Commander in Chief from one of its
members.
Out of that experience would come several conclusions, I believe,
from those who framed the Constitution. One, that it was absolute-
ly essential that we have an Executive Branch of government, and
an effective one. But I also think there were certain vestiges and
heritages of congressional involvement in the conduct of national
affairs on the Executive side which were very helpful and which
continue to this day.
These are reflected, I believe, in the manner in which the Con-
gress plays a very active role in foreign affairs. And so there has
always been, I think, a quasi-interest in the Congress in the Execu-
tive Branch.
But it is very important to remember, and I think this is often
forgotten by Members of Congress, that we created an executive
form of government and not a parliamentary form of government.
And therefore the role for the Member of Congress in that system
is one that I think becomes very frustrating, because ultimately I
am of the view that Members of Congress want to become more
deeply involved in the structuring of policy. And I agree with what
Mr. Derwinski said, and I would commend to this committee that
you seek ways for the Congress to become more involved in the
front-end.
I believe that Congress needs to be more involved in the develop-
ment and the planning of national policy and less involved in the
execution. If you will look at Article 1, Section 8 of the Constitu-
tion, and the enumeration, the broad, extensive enumeration of the
powers of the Congress, and compare that to the Article 2, powers
of the Executive Branch, there is no comparison. The power of the
government is vested in the Congress.
But I believe that over a period of years, as our government has
evolved, that we see a greater assertion of the role of the Execu-
tive, and its emphasis on policy, and less of an assertion by the
Congress. This is the bully-pulpit theory of Teddy Roosevelt, where
the Executive Branch takes the leadership.
Consequently, as a Member of Congress, I found that the Execu-
tive Branch proposes and the Congress disposes. The Executive
Branch acts and the Congress reacts.
Now, I think we need to change that. If you look at the — and this
can be done, I believe, by the Congress in the manner in which it
asserts its jurisdiction under Article 1, Section 8.
Our Constitution had a dual purpose: one, to establish a repre-
sentative form of government for the protection of civil liberaties,
and a government that was for both Federal and State. But second-
ly, our Constitution created an entity that could engage in foreign
affairs, that could deal with foreign governments, that could
engage in diplomacy, which you could not do under the Articles of
Confederation.
Now, I believe that at the heart of what you are seeking to do is
really a question of separation of powers. I believe that if you look
at the history of the American government, you will see that there
has been a cyclical relationship between the Executive and Legisla-
tive Branch. There are periods of assertion of legislative authority,
and then the pendulum swings away.
There was enormous assertion of Executive authority in the
American Civil War. In the period following the war, you would
see the assertion of Legislative power. That would be reversed in
World War I. And then the pendulum would swing away again and
we would move toward Executive power in the Depression, and
then with the enormous efforts of World War II.
As a Member of Congress in the 1960s and 1970s, I always had
the feeling that the Congress lacked the resources to come to grips
with the Federal Government on the Executive side. A favorite
whipping boy was the Office of Management and Budget, 0MB.
You felt that the Executive Branch dealt with a certain authority
and a disregard which would really cause a great deal of anger.
But a lot of those things have changed. And I believe the pendu-
lum has swung now in a way that Congress must seriously address
the issue of separation of powers to see whether there has not been
an overextension and a tipping of that balance and an encroach-
ment in the Executive function by the Congress.
I think three events came into confluence in the early 1960s and
the 1970s. One is philosophical. There has been in our country a
debate and discussion about the centralization of power. We saw
that evidenced in the New Deal days. But in the 1960s there was a
confluence of the question of centralization of power, the Vietnam
War, and third, the Watergate experience.
And when those three came into confluence, I think it changed
very significantly the relationships. There was an erosion of power
in the office of the Presidency, both created by Vietnam, but par-
ticularly it was created by the Watergate experience.
We would see in the 1974 elections a significant change. There
would follow a series of sweeping legislative mandates: the Budget
Impoundment Control Act, certain regulations that related to the
intelligence community. You would see the Congress develop the
Office of Technology Assessment and strengthen the role of the
General Accounting Office.
I think that what this committee can do is to define the role of
Congress and find ways to become involved in policy, and changing
policy. I have listed in my statement a series of things which I
have observed. One of those is legislative gridlock, gridlock which
occurs between the House and Senate, between the appropriations
and authorizing committees, that occurs between jurisdictional
committees.
I would point out to you that the Congress itself lacks the capa-
bility really to govern. I make that observation based on the expe-
rience in 1974. The election in the House in 1974 really produced a
veto-proof Congress in the ratios between the Democrats and the
Republicans. But it didn't work out that way. And the reason it
didn't work out that way is because the Congress could not agree
on the issue that related to energy, which was the first one that
President Ford had to address, because the issue of energy is not
along partisan lines; it is along regional lines. It is not along philo-
sophical lines; it is regional. It is not a partisan-type issue. And
consequently the Congress was not able to coalesce on an energy
policy in 1974 and 1975.
I have made comments here that Congress has become a full-
time job. I recommend that this committee look at that and how
8
we can end the sessions shorter in order that Members can get
back to their districts, in order that Members not have to be de-
pendent upon getting reelected to Congress and having also to raise
significant amounts of funds in order to do that.
Mr. Derwinski mentioned the base closure methodology, and I
think he is exactly right. I think that has far broader application
than just in the Department of Defense. I would point out to you
that that concept is an all or nothing. Once the commission makes
a recommendation, you must take it. It is an all-or-nothing propos-
al.
I have talked to you in the statement about legislation by label,
that very frequently there is not the in-depth examination of many
critical and controversial issues that you pass on, and Members do
not develop the expertise to adequately pass on those. I have given
you examples of that.
I cite that in the more technical fields, as you begin to address
legislation that is highly technical and scientific, that you should
be absolutely certain that your decisions are based on the best sci-
ence that is available to you.
I would also point out to you that when you are measuring im-
pacts of legislation, you borrow a leaf from industry and the De-
partment of Defense, which is program analysis and evaluation,
and look at what their impacts are, what the tradeoffs are, what
the economic impacts are, in order to have a better understanding
of what it will do to our government.
I mentioned to you the enormous growth of congressional staffs,
and that has occurred in large measure because of the acquisition
of additional information capabilities, it has occurred because of
the complex subjects that you deal with.
I point out that I was beginning to find later in the 1980s that it
was becoming more difficult to meet with Members personally. I
think you have to be careful about the staff role. You have some
extraordinary people here on Capitol Hill who render enormous
service to the country as staff members. But you have to be careful
that at times there is a misunderstanding or miscommunication be-
cause principals are not dealing with one another and you are deal-
ing with staff.
And I recognize that very frequently accessibility of Members is
sometimes a management style that accommodates the Member
rather than an effort really to pass that responsibility to someone
else.
I would suggest to you that you seriously consider the develop-
ment of some type of a committee on staff, people who would estab-
lish staff guidelines, protocol and courtesy for staff, training for
staff, and I would suggest to you that because there are so many
people who that are enormously able, that annually Congress itself
cite certain members of the staff of both Houses as examples of in-
dividuals who set a staff example for others to emulate.
One of the other things I mentioned to you briefly was post-con-
gressional employment. I ask the Congress and I ask this reform
committee really to make two audits. The first audit I would ask
you to make, and which you have done, is to look at all of the com-
mittees and many subcommittees of the United States Congress
and what their jurisdictions are to determine what the overlaps
are, and the dupHcation that occurs because of those.
And then the second audit that I would ask you to make is to go
back and look at the legislation, significant legislation that has
been introduced and adopted by the Congress on congressional
sponsorship principally, that impacts on the Executive Branch of
government, and ask the Executive Branch of government to come
in and frankly tell you how that legislation is impacted.
I have mentioned, for example, the Budget Impoundment Control
Act, the War Powers Act, the Freedom of Information Act, the In-
spector General statutes, the statute that relates to acquisition of
computers, that would be an example.
Now, I mentioned to you policy. I would like to emphasize what
Congressman, Secretary Derwinski said. I would suggest to you
that we need not just more hearings with members of the Execu-
tive Branch. They can become confrontational, adversarial.
I would recommend to you that there be greater consultation and
nieetings and discussions between the Executive and the Legisla-
tive Branch before legislative programs become hardened and for-
mulated and introduced to the Hill.
I would like to see the Congress look at a national plan for this
country and where you want it to be in the next century.
And I would suggest the creation — you can make other sugges-
tions far better than mine — of four joint committees to address
near-term, mid-term, and long-term objectives for the Congress,
your plan of where this country needs to be. One would be in the
field of national security and foreign affairs. One would be in the
field of social services to include education, health, social security
and welfare. One would be in the field of environment. And one
would relate to finances, revenues, fiscal and monetary policy.
They would not be from the committees.
The year 2000 is a benchmark year. It marks the close of a cen-
tury and the beginning of a new age. It would seem to me that if
the Congress would provide its broad overarching template of
where they want America to go, then the President can add to that
or take from or modify that broad congressional plan. But I don't
see that broad overarching plan today coming from the Legislative
Branch. And yet I think that you can do that.
There are a number of other comments that I make. I would
single out to you what I think is the very fine work that is being
done by the Office of Technology Assessment. One of the studies
that they did called "Holding the Edge" is a very fine study which
I think anyone on this committee would benefit by reading it.
I cite the need, in my view, of a line-item veto.
I give you my view on term lengths for House Members and term
limitations, which I favor unless we can come forward with the
kind of reform I am talking about. I would not go to a four-year
term for House Members, and I explain why.
One of the things I ask you before you conclude your delibera-
tions, will you please look at the question of Executive gridlock.
You know how bills move through the Congress. But you need to
look at how legislation that is proposed moves or doesn't move
through the Executive Branch of government. It is a nightmare bu-
reaucratic process. Getting proposed legislation to the Hill is one of
10
the most formidable, difficult tasks that any Federal executive can
have.
And I described the Pentagon's efforts for procurement reform to
be the Rock of Sisyphus. The Pentagon, in response to congression-
al mandate, has time and time and time again presented procure-
ment reform to you. The problem is you cannot get agreement
when you try to staff it through the Executive Branch of govern-
ment.
Now, this is one of those situations, as you examine it you will
find Pogo's enemies: "We have met the enemy and he is us." What
happens is there are vested interests in other departments and
agencies reflected in the Executive Branch that frustrate efforts to
try to get reform legislation up here to the Hill.
And people will tell you in the Pentagon, they say. Okay, we can
get the bill through, but it is going to be D.O.A. when it gets to the
Hill. But this is an enormous, difficult situation.
And the best example that I can give to you is efforts that have
been not successful over a period of years in procurement reform,
notwithstanding constant recommendations for that that have
come from succeeding administrations. And I would tell you that at
this moment, as we speak, there are many, many people in the De-
partment of Defense, now going back again, looking at procure-
ment reform and rolling the rock up the hill.
I mentioned to you that it is very important in my view that we
fill Executive posts rapidly, and the Congress can do something
about this. And I am not pointing a finger at any administration,
but all administrations for the last 30 years. The appointment of
senior Federal officials is taking too long.
Only the Congress can resolve authorizations versus appropria-
tion difficulties.
And in conclusion, I mentioned to you that the real issue that
you must address, in my view, is that of separation of powers.
And I ask this committee to take the Federalist Papers and to
read Madison's Articles 47 through 51, where he discusses in five
articles separation of power and the philosophy and the concept of
structuring the United States Constitution. In that he quotes Jef-
ferson, and they point out that the most powerful branch, as it
should be, of our government is the Legislative Branch, but that
the restraint of power is absolutely essential, and how you exercise
it.
I ask you to go back to the Federalist Papers, and I think it
would be a very helpful guide to you, as you address your task, be-
cause what happens and has happened in this country in the last
200 years has had an enormous impact on this planet, and what
you do or fail to do in this country or what we do or fail to do in
this country is going to have an enormous impact in the coming
age.
In conclusion, I would leave with you the comment that Alexan-
der Hamilton made at the New York convention to ratify the Con-
stitution, where Hamilton would remark in 1788, "Here the people
govern." And if that can be your goal, and if you can achieve it,
you will have rendered an enormous service to our country.
I appreciate the opportunity to be here. Senator Boren.
[The statement of Mr. Marsh is printed in the Appendix.]
11
Chairman Boren. Thank you. Thank you very much, Secretary
Marsh.
I want to thank both of you.
I was wanting to interject a time or two as I listened to you, as
both of you underlined the need for us to be more involved in
policy and less involved in discussion. One of the frustrating things
that has been expressed by many of our witnesses is that we are so
very often bogged down in what goes beyond, really, appropriate
oversight, into very tiny details, and also spread very thin our
membership on so many subcommittees that are developing into
very minor issues, that the input into the major policy decisions
themselves really doesn't take place, partly because we are so frag-
mented in our own lines in Congress that we don't have time to
have that focus and have it take place, and also partly because we
have not set up those mechanisms for informal consultation in par-
ticular between the Legislative and Executive Branch as decisions
and recommendations are being made, only to come in after the
fact to either complain or criticize or try to change decisions where
there could have really been an impact.
I think your suggestion for some informal consultations in ad-
vance is a very important one, and one which I will come back to
in just a minute when it comes my turn for questioning.
But I want to turn— has Mr. Allard gone to vote? There is a vote
on in the House. We will turn first to Mr. Dreier.
Do you within the to go ahead? You may need to go vote.
Mr. Dreier. I just did. I snuck in and out.
Chairman Boren. Senator Lugar?
Senator Lugar. Thank you very much, Mr. Chairman.
Mr. Marsh, you sketched an idea that the President could add or
subtract from an overall plan, a template that the long-range plan-
ning committee that might be set up could initiate in the Congress
as an illustration of how policy can be developed.
I want to question you a moment, because this is so at variance
with what recent history has seen. For instance, with the current
administration. President Clinton is now involved in a massive at-
tempt to bring about health insurance reform with a large task
force under the direction of Mrs. Clinton, having done a good bit of
work. Welfare reform, likewise the National Service plan, these are
major initiatives that are from his campaign, and he is fulfilling at
least objectives that he saw there.
And I am wondering if this has not been characteristic of most
Presidential campaigns that were successful. Presidents offer plans
and they begin to try to formulate a policy and bring it to the Leg-
islative forum. That doesn't obviate consultation, but still the initi-
ative has been clearly with the Executive, with the Presidential
candidates.
Is it realistic to anticipate in the future that the Congress would
have thought through what is going to happen, say, in foreign af-
fairs or in the domestic scene for an intermediate or long-range
period of time, and a President would be prepared simply at the
margins to follow this? Do you follow the drift of my questioning?
How do you anticipate, even given the ebbs and flows that you
suggest correctly occur in the Executive — is it really realistic for
12
Congress to be engaged in that degree of specific planning, that ex-
ecutives would simply tailor the template?
Mr. Marsh. What I would envision, Senator, would be more a
broad statement of goals that would be determined by the Congress
to be the national goals to address our national needs, both on the
domestic and the foreign scene. That would harness a lot of the re-
sources and the ideas that would represent both the regions of the
country, and laying these out in a very broad template, not binding
by law. And indeed the joint committees would meet and after they
had made a report, they would disband, unless the Congress would
want to reconvene them on a four-year basis.
I believe what has happened in the 200 years of our experience is
that if you look at Article 2 of the Constitution on the Executive
authority, it says the President shall make recommendations on
legislation that he thinks will be helpful. If you look at Article 1,
the enormous enumeration of congressional powers are set out
there.
I believe that the Congress can harness the enormous talents and
energies that it has here in 535 people to give us a very broad tem-
plate of where the country needs to go.
The President would then draft his health plan, which may or
may not agree with the various views that were contained or ex-
pressed by the Congress, and it would be composite views that
would be expressed in the national plan. In a way it would be like
the platforms of your two parties. But it would represent a blend
that would occur because of the interface and the interaction be-
tween both parties in the Legislative Branch.
But in drafting the national plan, I think the Congress at that
stage should involve very deeply the resources of the Executive
Branch, including senior levels, cabinet officers, people below cabi-
net level, who are senior officials. I would incorporate at that time
some of the views of the Executive Branch.
Senator Lugar. Let me form up in this manner, because you
mentioned the party platforms. What if the goals of a particular
Congress dominated by a particular political party were sharply at
variance with goals that might have been adopted by the opposi-
tion party?
For example, from time to time parties have stood on various do-
mestic issues poles apart, and the long-range plan called for really
the ideals of one party, but the country rejected that. So essentially
you are back to square one in terms of what the goals are.
All I am suggesting, I suppose, is I think it is going to be very
difficult for the Congress to deal in long-range planning in terms of
goals that an executive might tailor. It seems to me the whole busi-
ness in democracy is that change occurs rapidly, as expressed in
elections, aside from overall goals such as full employment or
growth each year of the economy, or hopefully there will be no
dropouts in high school, these sorts of things.
I may not be doing justice to your idea. This is why I am trying
to refine it in my question.
Mr. Marsh. I think that one of the problems that we have is be-
cause of the enormous impact of change, we have not developed the
new ways and the new means to address a number of these issues.
I think we are going to have to experiment.
13
One of the things I am convinced we have to do is have a greater
discussion and dialogue between the Congress and the Executive
Branch.
I believe that many people come to the Congress with a lot of
ideas about things they want to do, and they become so absorbed in
the day-to-day routines of the office and the demands, which are
very great, that some of these broader, longer range things are
overlooked, and some of this is forfeited to the Executive Branch.
And I believe that Congress can play a greater role in getting these
ideas out there.
The rejection of those are going to be determined ultimately by
the electorate. The reason I am opposed to a four-year term for
House Members is that I think there is a very valid purpose served
by having a two-year election midterm in the President's adminis-
tration, because that will be an expression of whether or not they
agree with that President's direction. We saw that in the elections
in 1966.
And so the electorate will respond to those goals, but right now I
don't think that Congress itself as an institution is thinking about
where this country or where they want it to be 10, 20, 50 years
from now.
Senator Lugar. Thank you.
Chairman Boren. Thank you very much.
Senator Cohen?
Senator Kassebaum?
Senator Kassebaum. First, my apologies for missing your com-
ments, Mr. Derwinski.
I think probably both of you would agree, and to explore just a
rninute Executive gridlock, because I think we understand Legisla-
tive gridlock — Senator Boren touched on this for a moment — one
thing I have found that is really a growing problem is the regula-
tory process, and that I assume is what you were talking about as
being part of the Executive gridlock, how we fashion a bill here
that is fairly broad in scope, and then the different agencies that
are responsible for it, whether it would be Defense or Veterans, to
put together the regulations, and that may take a couple of years.
And then to really know exactly what has been done, I think that
goes back to oversight, which we don't do a very good job of.
Is this the kind of problem that you are addressing, Mr. Marsh,
and that you both have seen?
Mr. Derwinski. Mr. Marsh made a reference to — I think he used
term of rolling the rock back up the hill at the Pentagon. In is an
issue that really neither of us directed ourselves to, we just touched
on it briefly, that is the third and unseen force, which is the career
people in the Executive Branch who operate regardless of who is
President, and really have no interest in the Presidential view.
They served under enough of them.
I think this may sound harsh and it may sound almost shocking,
but I found the most difficult thing as a member of the Executive
Branch was to bring the rank and file employees onto the same
playing field and have them moving in the same direction. They
just sit there and say. The Secretary will be gone in three or four
years, the President will be gone in four or eight years, and we will
still be here running the country.
14
And I think one of the major problems is to see that — and this is
where the help from Congress to the Executive would be in order —
to work with us to help us run the departments of government, not
come in as Congress generally does after the fact and second-guess
some isolated case or scandal or instance of mismanagement.
I am not saying we don't want that kind of oversight. I am
saying that there needs to be advance cooperation in whipping the
system into line.
If I can tell you one story, if I might. Senator, when I left the
Congress I went to the State Department. I was there about a
month and I ran into an old friend. He said, "How are you doing at
the State Department?" I said, "Just great, meetings all day long, I
am chairing this, that, and the other meeting." But I said I have
noticed a pattern, all these meetings that I chair, the one decision
we reach is, when we will meet again. That is the only decision we
reach. And his answer was, "My God, you broke the code."
And I think John referred to it. There is turf consciousness,
there are petty egos, all sorts of little things, and when you get to
the top — ^when I was the Secretary I would get more cooperation
from a little GS-5 than I could from the Senior Executive Service
level people. It was a very frustrating situation.
And that is why I referred earlier to the advance consultation
with Congress, where we can work together to do what you want to
do and what we want to do, have a good, efficient, effective govern-
ment using the money you gave us, using it properly, using it effec-
tively, using it in a timely feshion. And our relations don't have to
be adversarial.
Senator Kassebaum. I think that is a good point. One example is
the child care legislation, which I think we passed two years ago,
and some of those regulations aren't drawn up yet for implementa-
tion.
They are still out there and I think that this causes great confu-
sion for those who have to be involved in the implementation at
the State level. And yet here, unless you are closely following it,
you don't really even realize what has or hasn't been done.
I think it is a problem, but it is one that I am sure we are all
frustrated with on both sides.
Thank you.
Chairman Boren. Senator Cohen.
Senator Cohen. Congressman /Secretary Marsh, Congressman/
Secretary Derwinski, I heard just the latter part of your statement,
Mr. Marsh, and you cited everything but Joshua Chamberlin as a
hero. I might point out to the committee Members, it was largely
due to the efforts of Jack Marsh that the residence of Joshua
Chamberlin was in fact preserved, and a great landmark in Maine.
Mr. Marsh. A highway through the center of the military post in
Georgia was named for him, too.
Senator Cohen. One of the problems we are trying to come to
grips with is this phenomenon known as demo-sclerosis. It was de-
scribed in a national journal article some months ago, and that is
that in this democracy of ours, every — ever5rthing has created an
interest group, every piece of legislation has its defenders, that
there is not only no possibility of terminating programs, but not
even an ability to modify them in a substantive way.
15
We have come into a sclerotic situation, and that reflects a loss
of power. I once read about a character in a novel who lamented
that everyone is in check in this system of ours, but no one is in
charge. We don't have anyone in charge of virtually anjd^hing, not
the President, not the House, not the Senate, not the Supreme
Court.
We are all checking each other, but no one really has the power
to move very much. One of the suggestions that you have recom-
mended is the Base Closure Commission as a model.
It seems to me that reflects the failure of democracy, that we run
up against these rock walls or we roll the rocks up over the hill,
however you want to describe it, and the first thing we want to do,
let's create a commission. We are unable to resolve these differ-
ences, so we have a commission resolve them for us.
Senator Dole, for example, has recommended that we create a
base closure type of commission to resolve the issue of campaign
finance reform or funding. Others have recommended it to deal
with the Federal budget.
Virtually every problem that we face, and perhaps we will have
one on health care reform, I think it reflects a failure of the system
when we have to turn to an extra legislative solution in order to be
able to go back to our constituents and say: Look, the devil or the
commission made us do this. If I had my choice, I would have voted
the other way, I had no choice under the circumstances.
So we — that is Senator Dole calling right now. We are moving, it
seems to me, away from this responsibility that we are supposed to
have. You also, I think, give a further indication of that, of your
reluctant endorsement of term limitations.
It seems to me that once again is an accommodation of the laxity
of the electorate. To give you an example, we say that narcotics are
illegal in our society, but our country is drowning in a flood tide of
illegal drugs. Therefore, one solution is let's just make it legal. We
can't deal with it, so let's legalize it.
I think that this idea of term limitations as an ultimate solution
is more or less a version of that particular attitude. We can't deal
with this problem of Congress not being, quote, as you call it, "re-
sponsive to the American needs."
There is another argument that we are too responsive. One of
the problems we have, we are so responsive, so accelerated in our
response to the demands placed upon us, that is part of the, if not
in full, one of the major causes of our demo-sclerosis. We are not
simply drawing these broad strokes of what the national needs
ought to be, and you put them in four categories. But we are like
pointillist artists, putting in every single dot, that we are ombuds-
man.
We have done this to ourselves. We said you have got a problem,
we have got a solution, please write, please call, we will do every-
thing in our power to resolve that particular problem. As a result,
even people like myself, from a relatively small State by way of
population, average at least 2,000 letters a week and sometimes
much more when there is a large issue at stake, that we have
mobile offices, district offices, or statewide offices and we encour-
age people to come to us because they see us as the last resort, a
breaking through the barrier of the bureaucracy.
16
So some would argue, and I think there is merit to this, that we
have been overly responsive to what is perceived to be the Nation's
needs. So I am just — I am not sure exactly whether these solutions
that you have offered are the correct ones, but it seems to me to
reflect a breakdown in the system or really a reflection or reaction
to the loss of power.
The loss of power when you are talking about prior to Watergate,
you had committee chairmen who could bring a bill to the Floor
and they could pass that in a matter of a few hours. Today that is
not possible, not in the House, it is not possible in the Senate.
So we have a loss of power, a spread of democratic reform in the
House and even more so in the Senate, so that everyone does have
a piece of the power as such and there is no sense of collective will.
I am not sure whether we can do much to resolve that with these
so-called reforms.
Mr. Marsh. In response to that, I would mention. Senator, before
you came in, Mr. Derwinski referred to the base closure methodolo-
gy also as a possibility in the field of veterans' affairs, and he may
wish to speak to that. I am sure you realize the reason is that you
go to the all or nothing approach in the Department of Defense. It
is because if we go singly, if we would go singly after a base by
itself, you would — ^you would have a Member that would be able to
form coalitions and alliances, for one person, for one base, you
would not — you would encounter guerilla warfare.
Senator Cohen. You make that argument on the budget and on
campaign finance as well?
Mr. Marsh. I don't know that I would do that on the budget. I
can see why Mr. Derwinski refers to it with Veterans' Affairs.
What you do in the base closure situation is everybody sees a
common good of something that needs to be done, but it is a very
tough bullet for the individual who is impacted to bite. So the rest
of the Congress bites it for him. And you recognize that that indi-
vidual whose base is being closed is going to put up an enormous
fight and fuss, but they are going to lose. And they know they are
going to lose, but their constituents, I think, think that they are
making the good fight to try and win. That is the reason you do it.
But in reference
Senator Cohen. Let me just interrupt you for a second because I
am way over my time. But it seems to me rather than giving the
power to committees, what we are prepared to do is give the power
to — I am sorry, a congressional committee, we are prepared to give
it to a commission. That seems to me to be a major change in this
democratic system.
I would far prefer us to go back to the committee system, where
a Chairman and the Ranking Member could deliver his committee
and go to the Floor and get the consent of the rest of the Members.
Rather than saying, look, we no longer have the power to deliver
the votes, let's get a commission to do it for us.
Mr. Marsh. To follow up on that, and Ed may wish to address
this, too. But I would say to you the reason that I think the govern-
ment has become so responsive or the Congress, is it has become a
full-time job. And because it has a full-time job, you invite people
to call on you and to do things for you. If it were a part-time job, I
think some of that would go away.
17
Ed?
Mr. Derwinski. I would only say, Senator, that I would interpret
the process that I think has been effective, the Base Closing Com-
mission, as a testimony to the influence of Senators and Congress-
men, not weakening, and for this reason. That as an ex-Congress-
man, I understood what it was like to be parochial. You had to be.
You had to reflect your district, you reflect the economic, ethnic
and other interests of your district and your State.
Now, the Base Closing Commission permits the entire procedure
to be elevated to a national picture. In this way you could still cast
your vote, you can still do your individual battle, but you can't con-
duct that guerilla warfare and snafu the entire process.
When I was at the VA, I asked for a commission procedure simi-
lar, not for closing, just for reorganization. I was denied that
option. But it would have — we would have been maybe to make
rnany, many more effective executive decisions, administrative de-
cisions, and helped nationally the veterans' world, at the expense
here and there of a local interest.
I think Congress has permitted that in the base closing, and I
think it is one of the wisest and most effective things Congress has
done.
Senator Cohen. Thank you, Mr. Chairman.
Chairman Boren. Thank you very much.
Let me explain, we have a vote on the Senate Floor, and I will
return right after that vote, because I do want to ask a couple
questions. But I am going to turn to Mr. Allard in the meantime,
and then Mr. Dreier, if he comes back in, and then I will be right
back.
Mr. Allard. Thank you very much, Mr. Chairman.
I would like to take this opportunity to welcome both of you also
to this committee. I am a relatively new Member to Congress, just
in my second term, and so I find listening to both of your experi-
ences fascinating and very informative.
You both talk about the balance of power. I am a firm advocate
that Members of Congress ought to learn to live under the same
laws as everybody else. One of you had mentioned Madison, and
Madison, in effect, tried to apply that principle.
Both of you have served in the executive area and some sensitive
intelligent areas, and how did you view some of the rules and regu-
lations that might have been promulgated by another agency that
would have had an impact on your agency and how was that han-
dled?
For example, let me give you — see, one of the problems we have
here in the House is that we may pass some legislation, promulgate
rules and regulations, and they are afraid — some Members of the
Congress are afraid that the bureaucracy and those regulators may
come in and harass Members of Congress, and particularly if we
get on some of the very sensitive committees, where you have, you
know, the rules and regulations are sensitive areas that get applied
back over into the House.
So I am — I am interested in comments that you might have on .
how we address this problem in the balance of power and that how
do we have these rules apply under Members of Congress?
18
An example is minimum wage, we don't have to compl>- with
minimum wage. You know, family — the most recent bill that was
passed that creates an exclusion for Congress, in a manner of
speaking, the Members of Congress don't have to appeal — don't
appeal a case to courts, it just goes through a local committee, as
the Family Medical Leave Bill, for example. So it is something that
we are struggling with on this committee and we would like to
have some of your comments or thoughts as far as this issue is con-
cerned.
Mr. Derwinski?
Mr. Derwinski. If I understand you correctly, what you are
really referring to is the tendency over many, many years for Con-
gress to exclude itself from many provisions of law.
Mr. Allard. Since 1935.
Mr. Derwinski. Right. Now, I don't think — in each individual
case, I think you probably justify much of it. The trouble is collec-
tively it became something that — combination of commentary from
the media, of political debate, the pendulum has swung against
that kind of congressional maneuvering. At the same time, at the
heart of it, and this isn't in your question but what I was reading
into it, you always have to be careful that the individual Member
of the executive branch, and the executive branch as a whole, is
not subject to pressures either in form of coercion as to facilities
closing or opening, the pork barrel kind of approach, or the threat
by any executive at any time to turn loose Federal regulators
against that individual Congressman, or say his constituent, if he is
going to bat in a very difficult case.
I personally feel that the errors and weaknesses that the Con-
gress has shown have been far, far outweighed by the necessary in-
dependence of and the necessary ability of an individual Congress-
man to fight battles for his or her constituents. And I look at all
these rules, regulations, or the absence of applying them, in that
sense. And when you get it under public scrutiny, as you do now, I
think the corrections will come and they will be, hopefully, be done
logically and not be stampeded.
But if you look at the resources of the executive branch, com-
pared to the resources of Congress, I would say that the bloated
size of congressional staffs borders on a national disgrace. Having
said that, though, I think Congress needs those bloated staffs be-
cause of the bloated bureaucracy.
So I believe in streamlining the bureaucracy, and in the process
of that perhaps then Congress could legitimately streamline it. I
hope that was a proper interpretation.
Mr. Allard. Yes. And my thoughts are, you know, if you have
Congress that has to live under the same laws as everybody else,
they appreciate the impact of those laws on themselves as individ-
ual citizens.
It gets back to one of the comments of being a part-time legisla-
tor. If you are part-time
Mr. Derwinski. Exactly like the minimum wage, et cetera. Con-
gress should never have been exempt from that. But there are cer-
tain other provisions when you are doing battle with the executive,
where Congress has to keep certain levers of authority and protec-
tion in its hands.
19
Mr. Allard. On the budget. I serve on Budget Committee and I
noticed that as those figures have come through and we talked
about those figures, is that nowhere tied in with those figures is
the number of employees that we are talking about. And when I
served in the State legislature, we frequently established account-
ability by knowing not only the dollar amount that was appropri-
ated to an agency, for an entire department, but we also knew how
many employees that we were talking about and calling them full-
time-FTEs, full-time employee equivalents.
So I would like to hear any comments from either one of you or
both of you on how you think applying that standard into the
budget, that you will have a certain number of employees in the
various departments, if it would help accountability, is it some-
thing that the executive branch of the various agencies could live
with if we started to do that.
Mr. Marsh. I will try to respond first.
There are, of course, caps and numbers on employees in the De-
partment of the Army and the Department of Defense. For exam-
ple, there are — the numbers of civilian employees is established by
law and it is capped, as is the strength of the armed forces. It is
established by law.
I can't speak to the other departments or agencies of govern-
ment, but I suspect maybe Mr. Derwinski can.
Mr. Derwinski. I will only speak from my experience at the VA,
because it has to be unique. You see, the problem with any cap is
that it clearly takes away effective management decisions. A cap is
an arbitrary and artificial restraint.
Now, when I was at the VA, my logical concern, properly so, was
the medical care to veterans. Now, a cap on doctors' salaries could
be contradictory to improving medical care. A cap on the number
of nurses is interference in management's ability tc provide better
care.
I would say that if Congress wanted to impose budget discipline,
that a dollar cap rather than FTE cap, would be perhaps a more
practical way to approach it.
Mr. Allard. Both of you have served in the House and now you
served on the agency side, and I think both of you were here when
they did a lot of the — had the five-year study to get ready for a lot
of the congressional reform that occurred in the early part of
1970s. And I wonder if you have any comments on how you think
that congressional reform that we had in the early 1970s, how that
has evolved and what you see happening in the House, and see if
some of those things have been beneficial or generally were we
better — would we have been better without that reform movement
at that time?
Mr. Derwinski. Well, I think you are referring to the reform
movement that came after the Watergate election.
Mr. Allard. 1974.
Mr. Derwinski. Right, that was understandable. That was a po-
litical backlash at the time. We had a huge freshman class, just as
the one you have now. You know, the very large freshman class
has gathered momentum, a life, goals of its own. And politically
there was also-it was also a partisan adjustment, and an attack on
the old warlords of the Congress.
20
Looking back, I think it was an overkill. But that is in part a
partisan comment, because as a Republican I am sort of the victim
of the wave of ultra liberalism that came with that class of 1974.
But again, it was an absolutely logical political correction. People
had it up to here because of the whole Watergate episode, and they
made a correction. And that is — you look back through history and
each party at some time or another has suffered or benefited from
that kind of correction.
Mr. Allard. That is all the questions I have.
Thank you, Mr. Chairman.
Chairman Boren. Thank very much.
Let me just ask a brief question or two.
As I indicated earlier in my comments, I strongly agree with you
about trying to find ways in which Congress is more involved in
policy and perhaps a little less involved in execution. I think the
amount of time that we spend on execution sometimes and tr5dng
to attempt to involve ourselves in that, not just overseeing but the
actual execution while it is going on, sometimes leaves less time for
policy involvement.
Let me just ask each of you to comment on two or three possible
suggestions. One is the question as to whether or not we should
have fewer committees and subcommittees, particularly subcom-
mittees, so that Members can concentrate their time more on par-
ticular issues? We have cases where we have Members of the
Senate that belong to more than 20 committees and subcommittees,
so there is a great fragmentation of time.
Whether, in addition to that, we should set as a goal, tr5dng to
have one committee or subcommittee in each House principally re-
sponsible for a certain agency or function of government? We have
had some studies, for example, that show, I believe, that FEMA re-
ports to 37 different committees and subcommittees, in part in
terms of its programs.
Would it be healthy if we had fewer committees so the Member's
time is concentrated, subcommittees, less overlap, so that we at-
tempt to identify the committee or subcommittee with principal ju-
risdiction and oversight over a particular executive branch agency
so there is not so many committees looking over the shoulder of
the same agency?
That we try then, once we have that in place, to have more infor-
mal contact between the Members?
I think we had a very unusual situation perhaps because the
nature of what we dealt with, but as Secretary Marsh knows, we
often had communication in the intelligence area, he had a lot of
communication with Senator Cohen and myself when we were
jointly chairing that committee. And I can remember several cases,
I remember once during the arms control negotiations, I can't be-
lieve— I believe it was the Intermediate Range Treaty, when Gener-
al Powell actually came out — I can't remember if he was the Chair-
man or if he was National Security Advisor to the President at
that time, and I believe Judge Webster and one or two people from
the Defense Department, those involved in negotiating the treaty
ran into some difficulties that involved the oversight responsibil-
ities of our committee. And we actually sat down together without
concern about separation of powers, at that point, and worked co-
21
operatively to come up with one set of talking points that the nego-
tiator would go back to the table with the then Soviet Union, say
this is the joint request of the Congress and the executive branch
of the United States, we are at one on this, we see it the same way,
it had to do with the verification procedure.
The Congress insists upon it, we must insist upon it. And the
treaty is going to be in trouble for ratification if it isn't done this
way.
As I recall, we perhaps even signed some letters that our negotia-
tors took back with them. But this was very much done together.
We also, from time to time, had retreats with leaders in the in-
telligence community in which we discussed long-range planning in
the field, including the setting of major budget priorities and pro-
grammatic decisions. We didn't reach decisions at those meetings,
but we really had a sharing of information.
So I wonder if we should be encouraging that. How do we do that
without running into problems — since we were dealing with classi-
fied information, it was a little different situation. But in most
cases, it would not be classified.
How could we do that without running into the perception that
the executive branch and legislative branch people are meeting to-
gether, not in open meetings of committees or open public hear-
ings, to have those kinds of discussions, that in some way we might
be trying to do something improper?
So the number of committees, the parallel responsibility between
the executive branch and Congress, the increase of informal and
what has been called up-front and advance-of-decision-making con-
sultation.
The biennial budget is something else that has been proposed.
There has been a proposal from some of our Mepibers that we
should budget on a biennial basis. That would leave more time for
consultation and appropriate oversight between the relevant com-
mittees. So those are three or four things that have come to us as
suggestions.
I suppose the critics of the idea that just one or two committees
ought to have jurisdiction over a particular agency of government,
as opposed to many, as we now have, often with overlapping juris-
diction, and we should have informal contacts, there would be some
concern as to whether or not cooperation would occur. Would the
legislative branch get too cozy with the executive branch and
would it end up being not an arm's-length transaction, one in
which — over the years a charge has been levied at the Agriculture
Committee, for example, that it has been too friendly with the Ag-
riculture Department and that no one is really overseeing either
one on an arm's-length basis.
How do you react to those criticisms and do you think any of
these suggestions have merit?
I might just ask both of you to comment briefly.
Mr. Derwinski. Senator, I would like to look at things that I con-
sider necessary in a realistic fashion. I think, yes, in principle, if
you limited the number of committees and subcommittees that the
Members served on, you know, in principle, they presumably would
be forced to be more precise and do more homework in the given
22
field. But that runs against their natural interest, to cover every
possible base that helps them serve their constituencies.
I would suggest that perhaps the way to partially meet it is to
take the first two or three months of a new congressional session
when there is very little action on the Floor, except a rare case like
this where the President had the 100-day agenda, which I thought
was ill-advised. I thought he was given bad advice. You just don't
operate under a self-imposed artificial time frame.
But having said that, the first two or three months, when there
was very little action here, you truly concentrated committee hear-
ings without interference from, you know, sessions on the Floor,
and saw to it that the Members — each party could see to it that its
Members are there and ask the necessary questions^ I think would
be helpful. That would also get at the point that we have been
making about the advance consultation.
Committee hearings could be a very good vehicle for advance
consultation. When you get to something delicate like intelligence
or defense, I remember as a Member, I would never be upset if I
had a call from the State Department or Defense Department
saying, look, you have asked this question, we can't answer, we
can't put the answer in the record, but we will come to your office
and brief you. I understood that.
There are just common-sense ways to do it. But I think that if
you blocked out precise times early in the year — and not just hear-
ings on the budget and policy, but also the kind of thing we have
been talking about, areas of mutual interest, how can you help us,
how can we help you, and that doesn't even have to be political. I
think that President Clinton would be well-served if there was a
little give and take that he would benefit from, because you
could — in our political system, people we agree with one day, we
battle the next, and vice versa. I understand that you are an expert
at that. So the
Chairman Boren. I had some experience in recent days.
Mr. Derwinski. So there is no reason why we couldn't have max-
imum cooperation early on in the session, if we worked out that
kind of a schedule.
Chairman Boren. What about informal meetings; are these im-
proper? I know some of things we used to do, we oftentimes had
breakfast meetings, they were not formal sessions or open sessions
but with the leadership of the committee, and sometimes we were
invited to the agency involved, the executive branch; I am not just
talking about intelligence, but otherwise.
I have seen this happen in many areas, just to sort of sit down
and talk informally about general directions you hope to go in. Do
you think that is a proper and a wholesome thing to have happen?
Mr. Derwinski. I think that is a reflection of common sense. I
remember as a very young House Member being called into infor-
mal meeting with Speaker Rayburn, and there were glasses and
there was a little bit of camaraderie and a few stories, and there
was also business. And it was informal, yes, but it was productive
and positive.
Mr. Marsh. Senator, I think it is absolutely essential that more
of that be done. One, I think that the number of committees needs
23
to be reduced and I think the number of subcommittees needs to be
reduced. I think that is very important.
You raised the issue of whether or not you are getting into a
format that really brings us under the scope of some of the stat-
utes, which for me comes back to the point that I think that you
need to look at the impact of the laws that you have enacted. You
really need to take an inventory of what you have done in the leg-
islative field. And you need, in my view, to get some assessments of
what the potential impacts of legislation are going to be before you
adopt them.
This issue we are talking about is not limited to the executive
branch of government. We are getting into some problems that get
over into the judicial branch, an area that I suspect you are going
to have to address at some time is the question of sentencing guide-
lines. And you have Federal — some Federal judges now that are in-
dicating they don't want to hear particular cases because of sen-
tencing guidelines. This may be— ultimately, that may not be able
to be resolved except by the Supreme Court.
There is a— I think one of the things that has happened in the
last 20 years, more in the last 10, and I think it is very helpful,
that may provide these quasi nongovernmental forms, are the
emergence and the development of what we call the "think tanks."
And they provide a very helpful and useful function in providing
the opportunities to get together.
The hearing process, in my view, is absolutely essential. But it is
a — it is becoming a confrontational, adversarial thing.
One of the things that we have not talked about here, and you
must — and we have to think about it, and that is the fourth estate.
Absolutely essential, absolutely essential.
But I can tell you, in the executive branch of gqvernment with
instant coverage of international events — and I have been with the
President in situations where you are going to apply force, and
what is happening is the electronic media and the instant report-
ing of international events gets inside your decision cycle. Because
events are reported and are on the street, but you— the executive
branch cannot react without — in order to make a response, you
have got to coordinate with the Department of Defense, Depart-
ment of State, you have got CIA, and that staffing process, even
though it may move fast, a matter of just a couple of hours, it nev-
ertheless is running behind the electronic media.
I think we have to look at the fourth estate and how — and how
we can better translate through the media national policy that re-
lates to very difficult and complex issues that are not really resolv-
able or fully understood by sound bytes and investigative reporting.
One of the areas that the committee needs to look at, I think, is
how do we communicate better in the new technology with the
electronic media and the sound-bite era.
It causes a lot of problems in the executive branch. But it is abso-
lutely—the fourth estate, absolutely essential, absolutely essential.
Chairman Boren. Well, I want to thank both of you very much
on behalf of the committee. We are fortunate, as I am sure those
who have heard you today will agree, that we have had both of you
in the legislative branch and in the executive branch in various re-
24
sponsibilities. The perspective that you bring to us is a very impor-
tant one.
I often wish that everybody that serves in the legislative branch
could have had some experience in the executive branch and vice
versa. I think again when you talk about comity — and this is what
has been missing, and you see less and less of it. It is rarer and
rarer for an agency to sit down and say in a candid way, in any
form, with a group in Congress, particularly if there are people
there from both parties, which really is essential if we are going to
get things done — here are four or five options we are considering,
and laying them out in a candid way: What, do you think we ought
to do? That kind of two heads are better than one sort of working
together is all too rare. And I think we would have a lot more of it
if we had people in both branches of government that had experi-
ence with the other.
So I think having the perspective from both of you is a very im-
portant one and we appreciate very much both of you coming
today.
Mr. Derwinski. Thank you.
Chairman Boren. Thank you very much.
I want to introduce and ask them to come forward at this time,
our next panel — three others that have had broad experience in
our government and in various areas of the life of our government
and the work of our government; Dick Thornburgh, Paul Volcker
and John Brademas, our second panel.
Dick Thornburgh was the U.S. Attorney General from 1987 to
1991, and of course prior to that served for two terms as Governor
of Pennsylvania. He has been Assistant Attorney General for the
Criminal Division at the Department of Justice, U.S. Attorney for
the Western District of Pennsylvania, and for the past year has
served as Under Secretary for Management at the United Nations,
which is an additional very interesting perspective that he brings
to us.
Paul Volcker served as Chairman of the Board of Governors of
the Federal Reserve System for two terms, from 1979 until 1987,
and prior to being Chairman of the Board, he was President of the
Federal Reserve Bank of New York, principal operating arm of the
system. He has also been Under Secretary of Monetary Affairs, for
Monetary Affairs at the Department of the Treasury, and he is cur-
rently Chairman of the James D. Wolfmson, Incorporated, and
Frederick H. Schultz Professor of International Economic Policy at
Princeton; so both in the private sector and in education.
Senator Cohen. Mr. Chairman, he also has a Honorary Degree
from Bates College.
Chairman Boren. I knew there was a Maine tie there some-
where. From New York University, probably during the Brademas
tenure, I would guess.
I was just getting ready to present John Brademas, who served
as the U.S. Representative from the State of Indiana from 1959 to
1981. He was House Majority Whip for the last four years. While in
the House, he was a Member of the Education and Labor, House
Administration Committees, and let me say a person who spoke a
great deal, has written a great deal, and gave tremendous amount
of input into questions involving the organization of Congress or
25
perhaps the disorganization of Congress in terms of commenting
upon it during his tenure in the House.
After his tenure in Congress, he became President of New York
University until 1992. He is chairman of a number of boards and
numerous organizations, including the National Endowment for
Democracy.
So we can't think of three people who could bring more worthy
perspectives to share with us as we begin our work, particularly
trying to see how the organization of Congress needs to be consid-
ered in relationship to the work and organization of the executive
branch.
So we welcome you all, and I think I will just go down in the
order in which we introduced you and ask each of you to make
opening comments. Then following opening comments from all
three of you, then we will open to questions from Members of the
committee that are here.
Mr. Thornburgh, we are very happy to have you with us today.
STATEMENT OF HON. RICHARD THORNBURGH, FORMER
ATTORNEY GENERAL
Mr. Thornton. Thank you, Mr. Chairman. I am delighted to be
here.
I have given the proverbial prepared statement to staff members
with attachments, but I think it would be more worthwhile if I per-
haps tried to highlight some of the
Chairman Boren. Fine. We will receive all three of your state-
ments fully for the record and ask that you summarize them.
Mr. Thornton. I come here with a good degree of inspiration,
having spent the last five days in Colonial Williamsburg treading
where the former greats of this country trod and trying to resolve
problems in the revolutionary times.
I commend you and your colleagues on taking an in-depth look
at many of the problems that beset not just the Congress but in its
relationships with the other branches of government. Prior to the
coming to office of my former gubernatorial colleague. President
Bill Clinton, I had the privilege of serving in the Justice Depart-
ment under the previous five Presidents, and during that period of
time, interacted frequently with the Congress. I would like to offer
some views today on what I think is probably one of the more vexa-
tious matters in relationships between the executive and legislative
branches, and that is the request for documents, information,
access to witnesses, in ongoing criminal investigations, and in mat-
ters that are impressed with a great deal of sensitivity.
It is here that the tension between the respective roles of the
branches, I think, comes to a crescendo. Something I described
during my hearing, confirmation hearing for Attorney General, as
being the longest-running show in town. The back and forth that
occurs between various committees and the Justice Department, in
particular, with regard to information that is necessary. There are
legitimate views on both sides.
I think it is important to acknowledge at the outset, I am not one
of those who contests the oversight role of the Congress or the re-
sponsibilities to carry out investigations in areas where wrongdoing
26
has reached the attention of the Congress. What I would like to
note, however, as a former prosecutor and having dealt with the
criminal justice process over the last 25 years, is my serious con-
cern about inquiries into ongoing criminal investigations and pros-
ecutions and other matters that relate to the lawyering function of
the Department of Justice.
The primary concern I think in criminal investigations, it is
sometimes forgotten, is that the rights of individuals who may be
targets or subjects of investigations can be seriously prejudiced by
disclosure relating to the investigation or even identifying them as
being connected with some kind of investigation into alleged crimi-
nal conduct. All citizens have rights of privacy and confidentiality
that are seriously prejudiced by being exposed to public view. That
is the theory of course behind Rule 6-E of the Federal Rules of
Criminal Procedure that govern the privacy and confidentiality of
grand jury proceedings.
There is another side to that concern from the point of view of
the Department of Justice, and that is the prejudice that might
result to the progress of ongoing investigations. Information is
power in the back and forth that goes on between prospective
criminal defendants or targets of an investigation and those who
are relentlessly pursuing them. And any clue or any disclosure
with regard to the direction in which an investigation may be
going is a roadblock to the successful completion of that investiga-
tion.
Most often, these concerns arise in connection with disclosures to
the media. I earned the undying enmity of the Washington Press
Corps during my tenure as Attorney General for taking a firm
stand against leaks and in trying to prevent the unauthorized dis-
closure in investigations to both protect individual rights and to
preserve the integrity of our investigations.
I think that is an effort that is worthwhile and one for which I
feel no remorse. The same potential, however, exists as many Mem-
bers have had experience in unauthorized disclosures that might
come from information furnished to committees of the Congress.
Therefore, the stakes in dealing with these controversies over the
disclosure of documents and information and the accessibility to
witnesses are high indeed.
At the same time, I think it is important to note that most of
these controversies are resolved amicably. Many of them that begin
at a high fever pitch give way to the kinds of compromise that is
inherent in our governmental system.
In the report done by the Administrative Conference of the
United States, they referred to four frequently used methods of
compromise, each of which I have seen in action and each of which
is often a way around the confrontation that could otherwise
result. That is, first, the timed release of information that may be
requested with regard to an ongoing criminal investigation so that
it does not interfere with particular stages of the investigation.
Secondly, is the release of information with protective conditions
that are designed to maintain confidentiality during congressional
inspection. Third is the release of requested information in redact-
ed or edited form. And fourth, the release of the requested informa-
tion in the form of summaries of the information requested.
27
It is, however, those few controversies that are not resolved that
cause trouble to both branches of government. They are generally
in high-profile cases. They generally involve a partisan difference
in view or a partisan issue of equally high profile.
They are often undertaken, in my view, to score points one way
or the other, either by the Congress in seeking to push the enve-
lope of its oversight to investigative authority, or in the executive
branch to draw a line in the sand with respect to executive power.
I suggest that one more — one less noticed but more insidious factor
of this is with regard to the second-guessing process that affects
career prosecutors. Prosecutors who have their files made available
and are then publicly second guessed as to whether or not a par-
ticular prosecution should have been undertaken are more likely in
future events to go ahead and prosecute in cases where the exer-
cise of that discretion might otherwise have prompted a different
result for fear of having to be pilloried over a judgment call that
was made in a proper way.
At its worst, of course, these kind of conflicts can result in the
anomaly that transpired in the North prosecution, where the pros-
ecution carried out at great length and with enormous cost and
high publicity, and was aborted because of a failure to take appro-
priate safeguards with respect to immunized testimony. That, of
course, is the kind of thing that we now know, thanks to the
court's intervention, can be dealt with, but rushing as if in a mine
field, or any number of these trip wires that can abort a criminal
investigation, are often one of considerable importance to the na-
tional interest.
Therefore, from my vantage point, I want to concentrate today
on suggesting that the Members of this committee consider ways of
resolving these problems within a more rational framework. In
fact, even looking to the intervention of outside parties to reach
some impartial resolution of these kinds of controversies.
Referring to the July, 1990 report of the Administrative Confer-
ence, which I furnished to you, Mr. Chairman and Members, I
think you can see a menu of possible alternatives that can be ex-
amined, scrutinized, discussed, and perhaps even adopted to help
dampen this particularly vexatious interaction between the two
branches.
One of the real quandaries that faces someone who wants to test
in a legal way the proper availability of documents from the execu-
tive branch, requested by the legislative branch, is that the only
method available is to be indicted and face criminal charges of con-
tempt of Congress. And that is obviously an unattractive alterna-
tive to persons who think they are only doing their job within the
executive branch.
Among the remedies suggested by the Administrative Conference
are some kind of declaratory judgment procedure, which would
give the judiciary a role, which they often understandably shun
nowadays because of the perceived political nature of these differ-
ences. Secondly, the appointment through judicial intervention of
special masters to make findings with regard to particular contro-
versies.
The use, thirdly, of alternative dispute resolution procedures
which are now commanding more and more attention in the pri-
28
vate sector and, indeed, form part of the package of civil justice re-
forms which President Bush recommended during his administra-
tion.
Finally, and perhaps the most basic and easiest to negotiate,
would be some kind of written agreement and guidelines that
would govern the conduct of committees seeking information, and
those within the executive branch from whom the information was
requested. If for nothing else than an appropriate starting point to
begin the process of negotiation.
Now in my experience that process begins with every request,
and as I say, happily most are solved. But those that aren't, I
think, cast government, both executive and legislative branch, in a
bad light. I think this is an appropriate challenge for this commit-
tee to take a look at. I think the dividends that would accrue from
reducing these kinds of tensions would be good for all concerned.
I thank you for giving me the opportunity to share my experi-
ence and views with you today, Mr. Chairman.
Chairman Boren. Thank you very much.
I know those thoughts are going to spark questions and very in-
teresting ones we want to come back to.
[The statement of Mr. Thornburgh is printed in the Appendix.]
STATEMENT OF HON. PAUL VOLCKER, FORMER CHAIRMAN,
FEDERAL RESERVE SYSTEM
Chairman Boren. Mr. Volcker?
Mr. Volcker. Thank you, Mr. Chairman.
I have not considered myself a great expert in this general area
of the committee's inquiry, although I have spent my share of time
when I was in Washington dealing with the Congress one way or
another. And in trjdng to think how I could be at all helpful to
you, I thought maybe I would make two general points that occur
to me both from my experience in the executive directly, and in
the Federal Reserve, and my experience, perhaps, not having been
in the Congress.
So I am looking at this from the standpoint of an agency respon-
sible to the Congress, as well as an agency responsible to the Presi-
dent in the case of the Treasury. And I suppose what in a very gen-
eral way has concerned me the most is in a feeling, from our view-
point, of those that come before the Congress, of the lack of prior-
ities on the part of the Congress, a lack of proportion, which you
see in a number of different areas.
You see it in a tendency from the standpoint of the executive or
the standpoint of the Federal Reserve, a tendency to overregulate
in the sense of giving very detailed instructions about what to do.
And it is particularly damaging in the personnel area, I might say,
where we did not have that in the Federal Reserve, but of course
you have it in the executive and I think the difference is quite ap-
parent in terms of the professionalism and effectiveness of the staff
over time.
There is a tendency towards a kind of micromanagement in the
same area, often in the Congress. There is, I think, a lack of con-
sistent oversight which is regrettable, because I don't think the bu-
29
reaucracy should be exempt from what I think of as intelligent
oversight. And I see that in several directions.
I must say, it is quite frustrating for somebody dealing with the
Congress to have to face sometimes, as we did in highly repetitive
testimony before in the case of the Federal Reserve, perhaps a half
a dozen different committees in the space of week or two. It is in-
teresting the first two or three times, and you recognize you have
to do it once in the Senate and once in the House, and that is
useful, but by the time you are at the sixth or seventh testimony,
you are getting kind of tired and you are not preparing, the com-
mittee is not preparing and the process kind of runs down.
And then at the same — at the end of all those hearings, you are
likely to get that question from the chairman of the committee,
from which you shrink, would you mind answering a few questions
for the record? At which point, you are handed about 60 questions
from the committee chairman, which nobody has read except the
staff of the various congressmen and senators, which you in turn
turn over to your staff. And they say: I didn't come to Washington
to answer questions that nobody is ever going to read the answer
to. But in my case, I felt I had to read the answer because I didn't
know what the staff was answering and I wanted to know what the
questions were and it takes a lot of time for very little output.
Now having said that, the question is, of course, what kind of
remedies could arise. And I join in those and can very easily say
from the other side of the table, the committees tend to be too big,
particularly in the House, to be really effective. And I have great
sympathy for particularly the junior Members of those committees
that have a very difficult time in hearings lasting long enough to
ask five minutes of questions, and to sustain interest.
But the committees are very large and I find the smaller they
are, the more effective they tend to be. And too many committees,
too many overlapping committees — it is easier to say than to deal
with, I know, and I share the concern, which is absolutely matched
by my concern on the executive side, that there are too many staff.
Congress has attracted extremely able staff over the years. I
think they tend to attract more aggressive, young, bright people
now than the executive does. I am not sure whether that is entirely
in the interests of the most effective government. I think it is true,
but I think there is a question of, however good they are, too many
becoming too much, because it contributes to this lack of focus.
Senator Cohen. Chairman, if I could interrupt.
There is the second bell for votes in the Senate. I have a number
of questions I would like to submit for Mr. Volcker.
Chairman Boren. We hope you will rejoin us. We are not going
to burden the witnesses today with written questions. But let me
say, we do have a vote on in the Senate, but we will be coming in
and out. It is not lack of interest.
Mr. Volcker. I also welcome the written questions when they
are meaningful and thought about. Sometimes they get a little ex-
cessive.
Chairman Boren. We will be in and out. I apologize this has hap-
pened, but Chairman Dreier will continue on in our absence. We
will be right back.
30
Mr. VoLCKER. When I look at it from the other side and trying to
look at your problems, I do think there is a tendency, which I can
observe from being inside bureaucracies, of a kind of self-protective
instinct and not wanting to reveal one sentence more than they
have to reveal and not revealing anjrthing unless they get asked
precisely the right question, making the operation always look as
favorable as possible and not being as open and frank as they
might be about problems.
Then you get in a very difficult area that General Thornburgh
has already referred to, what are the proper areas for confidential-
ity? And when there is not a proper area, I think it is a burden on
the executive to be as open as possible, and you ought to press
them to be open.
We have had problems, maybe not quite so sensitive as the kind
the Attorney General runs into repetitively, but where is the
proper borderline in investigating the competence of bank supervi-
sion and bank regulation and avoiding inquiries, the kind of inquir-
ies into specific situations that I think really do violate questions of
privacy and effectiveness of being able to investigate.
Obviously, we run into that question all the time in monetary
policy, when we can have a lot of discussions about monetary
policy. But when questions border on exactly what are you going to
do tomorrow, you run into a different kind of question, where I,
frankly, don't think there have been a lot of problems.
But we have had recurrent problems in defining the borderline
between privacy of investigations and indeed defending more
proper boundaries of legalities from legitimate inquiries. I think
often the executive protects more than is necessary, and if we are
going to have effective relationships in an area where there is
bound to be tension and conflict, there is a burden on the executive
to be as open as they can and that is not the natural tendency.
So let me just leave it at this point with those very general con-
cerns and reservations.
Chairman Boren. Thank you very much.
We will come back to questions in a minute, and turn to our col-
league, Mr. Brademas.
Again, I apologize, we have had to go in and out for the Senate
vote.
STATEMENT OF HON. JOHN BRADEMAS, FORMER MAJORITY
WHIP, U.S. HOUSE OF REPRESENTATIVES
Mr. Brademas. Thank you very much, Mr. Chairman.
I too am honored to be here, particularly with such distinguished
public servants as Richard Thornburgh and Paul Volcker.
You are going to insert our prepared statements, I understand,
in the record, so let me try to move as swiftly as possible through
what I prepared.
At the outset, our theme is congressional executive relations,
note that my own service in Congress spanned a tenure of six
Presidents, three Republicans, Eisenhower, Nixon and Ford, and
three Democrats, Kennedy, Johnson and Carter.
It seems to me, one cannot really discuss this issue thoughtfully
without understanding certain fundamental factors: First, we have
31
a separation of powers Constitution; second, we have decentralized,
undisciplined political parties; and third, over the last 20 years, at
least, there have been significant changes in Congress and its oper-
ation that in an already fragmented system have further dispersed
power.
People hear the phrase "separation of powers," but too few un-
derstand its meaning. Some think Congress exists to do whatever a
President wants, but that, of course, is not what the founding fa-
thers had in mind. And it is imperative to remember that Presi-
dents, Senators, Representatives, are elected for different periods of
service, have different constitutional responsibilities and are elect-
ed by different constituencies.
It is obvious that in our system not being a parliamentary one,
the chief executive need not even come from a majority of the leg-
islative branch, and of course the years of Presidents Reagan and
Bush are dramatic witness to that prospect. I may say, it may be
instructive in this respect if I tell you that in my own 14 races for
Congress, I ran five times in presidential election years, but only
once did the people of my northern Indiana district vote for the
nominee of my party for President of the United States.
So the American way of governing was not really destined for or
designed for peaceful coexistence between the executive and legis-
lative branches, even when the two are controlled by the same
party.
Then comes the issue of lack of highly disciplined political par-
ties. I was, my last four years in the House as Senator Boren said,
Majority Whip. Had I been the Chief Government Whip in the
House of Commons, all I should have had to do would be to
produce the bodies, because I would know how they would vote by
and large. But that, of course, is not the arrangement in the Amer-
ican system. \
I had to lead a group of about 50 Democratic Members, Assistant
Whips, one of whom was the cochairman of this committee on the
House side, just to find out how my colleagues of my own party in-
tended to vote, and then urge them to support the position of the
Speaker and the Leadership.
Mr. Dreier. It has changed dramatically since you left, Mr. Bra-
demas.
Mr. Brademas. I am glad to hear that.
Well, I remember, Mr. Chairman, on one occasion, I said to a
Member, how should I put you down, yes, no? Leaning yes, leaning
no, undecided? He said, John, put me down negotiable.
Now, our two major political parties in the United States have
played very important roles, but for various — and forging consen-
sus and important issues, but for various reasons, the ties of party
have been weakened over the last generation. One of those reasons
is that television has now become the chief instrument of political
communication. And television is in turn in large part responsible
for the escalating cost of running for office and for the enormous
importance in American politics today of money to finance cam-
paigns.
When I first ran for Congress in 1954 — were you born, Mr. Chair-
man, in 1954?
Mr. Dreier. I was two years old.
32
Mr. Brademas. There you are. I spent, as I recall, between
$12,000 and $15,000. I got 49.5 percent of the vote.
The last time, in 1980, at least my memory tells me, I spent
around $675,000 the year I was defeated. The imperative of raising
campaign money, married to the increasingly significant impact of
decisions by the Federal Government on society and the economy,
has opened the door to very great influence on our political process
of so-called special interest groups and campaign contributions
from political action committees, and these are developments that
impair the process which is very important in a complicated de-
mocracy like ours of accommodation and compromise.
To these fragmentizing forces have been added over the last two
decades, the changes in the operation of Congress itself, especially
in the House of Representatives, that further disburse power. I was
part of those changes, aimed chiefly at curbing the power of auto-
cratic full committee chairmen, opening up the system to respec-
tive participation and making the system more democratic and ac-
countable. But as Ed Derwinski, my then colleague in the House
pointed out to this committee, those changes have not necessarily
made the House easier to lead or majorities easier to forge.
So if a President thinks he has problems in dealing with the
House, he ought to look at the problems that a Speaker has. Here I
think it important to note that Congress has been affected not only
by the kinds of reforms I cited, but also by steps that Congress has
taken to strengthen its function to its capacity to carry out its
functions both as policymaker and as overseer of implementation
of the laws.
The congressional budget process, 20 years old next year, is the
most dramatic example of the way in which Congress has sought to
enhance its capacity to do its job. Jack Marsh mentioned the Office
of Technology Assessment. That is another instance of an effort on
the part of Congress to strengthen its capacity to do a better job.
I speak of the Carnegie Commission on Science, Technology, and
Government. I Chair the Committee on Congress of that Commis-
sion. The raison d'etre of this commission is to make recommenda-
tions for how the three branches of our Federal Government as
well as the State governments can more effectively rnake judg-
ments on issues with scientific and technological implications.
My committee has produced two reports, that is the Carnegie
Committee has produced two reports on how Congress can improve
access to science and technology advice. And we are working on a
third, which happens to be the same subject as this committee is
dealing with, improving the operation of Congress. And as you are
undoubtedly finding, that is the toughest issue of all.
Now let me list a few reforms that I believe would significantly
improve the capacity of Congress to play its deliberative, as well as
representative role in our political system. First, I favor a four-year
term for Members of the House. Such a term would enable Mem-
bers of the House, without such unrelenting pressure to campaign
and raise money, to focus more on long-range policy.
In this respect, I note that Jack Marsh and I are in agreement.
The only difference is he favors a three-year term and I favor a
four-year term, but both of us favor a referendum every two years.
33
He would favor doing it every three years — every two years, as I
understand it, with a third of the House up. So far as I am con-
cerned, you could split the House in half and do it every two years,
stagger the terms.
Mr. Brademas. Second, I think we need to reform the campaign
laws. I was the author in the House of Representatives of the 1974
statute that provided for public financing of Presidential cam-
paigns, and although that is not perfect — no such law is — it has
gone a long way to keep the highest office in our country from
being sold on the auction block.
And I favor now and have for some time public financing of
House and Senate campaigns, not only as a way constitutionally to
impose spending limits in campaigns, but still more important, in
my view, to reduce the excessive influence of PACs and other spe-
cial interest money on public policy making.
I would also like to see an encouragement to contributions to
both our political parties, as avenues for forging consensus on im-
portant issues and encouraging more citizen participation in poli-
tics.
Those are a few changes I would like to see to not only help Con-
gress to a better job, but would also increase the cooperation be-
tween Congress and the Executive, which is a question to which I
now turn. This question is so broad I can only offer a few general-
izations and a couple of concrete illustrations.
The best illustration I can make in response to all questions
about institutional forces and individuals in the American political
system is, it all depends. Because the state of Legislative-Executive
relations varies with the time period, the policy, and above all with
the configuration of political force: Is the President a Democrat or
Republican, which party controls the Senate, which party controls
the House, and by how many votes.
I remind you when Presidents Johnson and Carter took office,
there were more than 290 Democrats in the House and 60 in the
Senate, which is not the situation today. And as President Clinton
has undoubtedly learned, having the Democrat majorities in both
bodies does not mean automatic approval in his budget any more
than Ronald Reagan found in 1981 that he had automatic approval
by the Republican Senate of his first budget.
The Ljoidon Johnson of 1965 was not the Lyndon Johnson of
1968. The George Bush of 1991 was not the George Bush of 1992.
And if I may say so, the Clinton of two weeks ago is not the Clin-
ton of last week, much, I am sure, to his satisfaction. In politics,
although the same people may be in office, times change.
I sat on the Committee on Education and Labor during the Great
Society years of Lyndon Johnson. Whether or not you agreed with
the legislation he produced, nobody can say the Executive and Leg-
islative Branches did not work together effectively. Yet it was
Democrats in Congress who, because of the war in Vietnam, helped
turn President Johnson out of office.
During the Nixon years, the Executive Branch had very little to
do with making education policy. Democrats and Republicans on
the committees did so. I make this point because we have become
accustomed to thinking of Presidential lawmaking as the norm.
34
Now, because I was part of the congressional leadership during
the Carter Presidency, let me offer a few comments on that. Presi-
dent Carter was new to Washington and had run for election in
effect by running against it. He did not seem to have the zest for
political combat as did Tip O'Neill, Hubert Humphrey and John
Brademas. He wore his office like a burden, and that we had all
been elected on larger margins than he was not lost on us.
He began to feel once he had begun to make his judgments on
policy and shaped his legislative proposals and shipped them to
Capitol Hill, he had done his job. He worked hard to prepare his
proposals but not so hard in selling them. He did not like the horse
trading and bargaining that characterizes much of the legislative
process. He found it difficult, I think, to understand the way a
Member of Congress, especially of the House, has to view the
world, being up for reelection every two years.
Those at least were some of the ingredients President Carter
styled in his first year. But his relations with Congress improved a
great deal, and during his Presidency he built an impressive legis-
lative record. The Department of Energy, Panama Canal treaties.
Department of Education, Superfund, Ethics in Government Act,
his own efforts on behalf of human rights and reaching the Camp
David Accords, all that is not a bad record for a President and Con-
gress who supposedly could not get along.
Now I want to turn to the attention of which my friend Paul
Volcker has spoken and of which every President complains. The
argument is that Congress, through legislation, committee reports
and in other ways, ties in an inappropriate fashion the hands of
the Executive in implementing the laws.
To this general charge I again respond: It all depends. Sometimes
it is a fair charge and sometimes it isn't.
I knew that Paul Volcker would raise a complaint because he
warned me last week at a dinner that he would do so, that there
were too many people working on Capitol Hill. So I just did a little
research. With the aid of congressional staff, I may add.
But as of March of this year, there were approximately 2,975,000
people employed by the Executive Branch of the Government of
the United States, not including the Armed Services. Subtracting
from that number, because they are included, 700,000 employees of
the Postal Service, that leaves us with approximately 2,275,000
members of the Executive Branch.
How many people are working for Congress? I do not, Mr. Chair-
man, talk about the Botanical Gardens, on which I must say in 22
years in Congress I never — whose employees I never found it neces-
sary to rely. It would be fine to put them in the Executive Branch.
There are 20,300, about 7,500 on the Senate side and 12,700 on
the House side.
As I calculated, that is what, about 100,000 to one. And I think
Congress does a pretty good job in holding its own against such
odds.
Now, I want to say a word about the matter of micromanage-
ment, because this comes to the most important point I want to
leave the committee with. During the years of Richard Nixon,
many Democrats like me — and I was a proud member of the White
House enemies list — did not trust the Executive Branch faithfully
35
to carry out the laws, and of course we were right. Here I will tell
you of one encounter with the executive with which, as some of my
former colleagues of this committee are aware, I was directly in-
volved.
Nineteen years ago this summer, following an abortive coup
against then President Makarios of Cyprus, which they attempted
by a military dictatorship which I strongly and openly opposed and
U.S. arms to which I strongly opposed, and which subsequently fell,
Turkish troops equipped with weapons supplied by the United
States Government invaded and occupied the small island republic.
Because American law, the Foreign Assistance Act and the For-
eign Military Assistance Act, expressly mandated immediate termi-
nation of further U.S. arms to any country using them for other
than defensive purposes, several of us in Congress called on then
Secretary of State Kissinger to insist he enforce the law and halt
weapons shipments to Turkey.
My colleagues and I reminded him that even as Mr. Nixon was
that very week on his way to San Clemente, he failed to protect the
laws of the Constitution of the United States. In light of the willful
refusal of the Executive Branch to impose the law of the land. Con-
gress attempted to do so by imposing an arms embargo on Turkey.
Nearly 20 years later, Turkish troops still occupy the country
and Presidents of both parties have failed to provide leadership.
But it is not my intention to debate the pros and cons of Cyprus,
but I make the larger point, particularly with reference to the
issue of Executive-Congressional relations on foreign policy, a
matter on which several Members of your committee are intimate-
ly involved, Mr. Chairman.
I cite but two examples to make my point. In view of the secret
actions of the Reagan administration in trading aVms to Iran for
American hostages and using the proceeds in violation of law to
buy arms for the Nicaraguan resistance, and in view of the actions
of President Bush contrary to his representations in building up
before the Persian Gulf War the war machine of Saddam Hussein,
I believe the issue of relations between Congress and the Executive
in foreign affairs to be a far more profound challenge to the Ameri-
can Constitutional system than the American people are even now
aware. Because foreign policy is the life and death arena for the
President and Congress, and unless there is a sense of trust be-
tween the two branches, we imperil the security of our country.
The co-chairman of this committee, my friend and distinguished
former colleague from Indiana, now Chairman of the House Com-
mittee on Foreign Affairs, once put the point this way, and I quote
him. I am speaking of Lee Hamilton, of course.
"The object is to make the Constitution of the United States
work. I do not see how that can be done unless those of us who
are charged with that responsibility speak to one another the
truth. The Congress cannot play its constitutional role if it
cannot trust the testimony of representatives of the President
as truthful and fully informed."
So I believe that it is imperative that between President and
Congress, and as you are talking about Executive-Legislative rela-
36
tions, this is the life and death area, there must be an attitude if
not always of harmony, of respect and, above all, trust.
A President who wants to be successful in conducting foreign af-
fairs must be able to work honorably and straightforwardly with
Congress. If he deceives or if he lies, ultimately he and the Nation
will fail.
And, Mr. Chairman, based on my own experience of over 20
years in Congress and having served with, not under, six Presi-
dents and having closely observed those in office since I left Wash-
ington, I must tell you that I have become increasingly disturbed
over the last decade by what I believe is a widening gap between
the principles at the core of the American Republic and the activi-
ties of American Presidents in foreign affairs.
I must also be critical of the failure of Congress, which for most
of the years since I was first elected in 1958 has been controlled in
both bodies by my party, to carry out the responsibilities in foreign
policy the Constitution ascribes to it.
I hope with the election of a Democratic President and a Demo-
cratic Congress, there will be a renewal of trust between the two
branches and accordingly a more effective American foreign policy.
The opportunity which a united government, which we now have
for at least four years, presents to overcome the institutional dis-
trust that has characterized the foreign policy process in recent
years must not be lost.
In concluding, Mr. Chairman, I return to the general question of
how to improve cooperation between the two branches and over-
come friction. It must be obvious from what I have said that I do
not favor eliminating friction and disagreement, not only an impos-
sible goal, but an unwise one, because sometimes obstruction by
Congress of Executive Branch action is in the national interest. It
is always a matter of judgment.
For example, I wish that in 1981 Congress had been more ob-
structionist, much more, and had effectively blocked President Rea-
gan's huge tax cut and huge military spending buildup, because if
Congress had blocked those actions America might not now be suf-
fering a $4 trillion plus national debt and enormous annual budget
deficits.
Certainly there are institutional structural changes that can in-
crease the likelihood that both President and Congress can more
effectively meet the Nation's problems. But in the final analysis,
the answer to that question will depend on the quality of the lead-
ers the American people choose, and so on the judgment, good or
bad, of the American people. It all depends.
Thank you, Mr. Chairman.
[The statement of Mr. Brademas is printed in the Appendix.]
Chairman Boren. Thank you very much, Mr. Brademas.
I turn first to Senator Sarbanes.
Senator Sarbanes. I don't have any questions, Mr. Chairman.
Chairman Boren. Senator Reid?
Senator Reid. Mr. Chairman, this is one of the finest panels you
have put together. I have not had the opportunity to read the state-
ments or listen to the testimony. I will read the statements. I have
respect for each of these gentlemen.
Chairman Boren. Thank you very much.
37
As we have explained to the panel, we have a series of votes on
the Senate Floor which causes Senators to be in and out, and now
we have votes on the House Floor, which has led to a suggestion
from one of the witnesses that we try to have parallel schedules
between the House and Senate and also try to schedule our com-
mittee and our Floor time on a parallel path.
Mr. VoLCKER. That is the great frustration of those in the Execu-
tive. You are always voting. I don't know what to do about that.
Senator Reid. We don't know, either.
Senator Sarbanes. Except when we are not voting, the Executive
is also frustrated.
Chairman Boren. Let me go back down the line with a few ques-
tions. Again, I invite my colleagues to let these questions stimulate
others.
In terms of the problems that sometimes exist between the De-
partment of Justice and the Congress, as I recall there have been
two or three occasions even where our committee was looking into
things when I was chairing the intelligence committee, and we
were told that answers would be forthcoming after certain periods
of the investigation had been completed but couldn't be made
during that time.
You talked about the possibility of undergoing dispute resolution
or the declaratory judgment. Let me just make sure I understand
that. For example, if our committee were to ask the Department of
Justice or the subcommittee were to ask the Department of Justice
about an ongoing investigation, whether it was being appropriately
handled or not, the committee would not ask the question were
there not some suspicion that it was not being properly handled.
Your answer is. We can't tell you now, in the middle of the investi-
gation, or it is a matter before a grand jury or some other reason.
I guess what you are suggesting then is that we either go to an
appropriate third party, an arbitrator or someone in whom both
sides would have confidence, or perhaps to a court for declaratory
judgment, as to whether or not the Executive Branch agency is ap-
propriately withholding the information at this stage of the pro-
ceedings as opposed to doing so perhaps for the purpose of covering
up some legitimate line of congressional inquiry.
Is that in essence
Mr. Thornburgh. That is it in essence. I am not bold enough to
suggest the specifics of the procedure that might be followed. What
I am concerned about is that there must be a better way than the
kind of food fights that occasionally occur between committee
Chairmen and members of the Executive Branch over the availabil-
ity of documents or the accessibility of witnesses. And it is kind of
a continuum, Mr. Chairman.
In my view and my experience, it was often simply a matter of
sitting down with the Member who was seeking information and
explaining, without dealing with the specifics of the case, precisely
what our objection was that would in fact jeopardize either the rep-
utation of the safety of a witness or slow up or detour an investiga-
tion, and that was it.
Then you get to the next stage on the continuum where that has
not worked, and some protracted discussion takes place, a grudging
ceding of certain documents but not all of the documents, until you
38
eventually get down to the hard-core, and then that is when the
confrontation occurs.
I guess what I am suggesting is that after all else has failed,
there must be something better than a criminal contempt prosecu-
tion to test the validity. It is a judgment call.
There are legitimate interests to be served, without question, and
I think it is with some reluctance that I suggest the intervention of
the courts in this, but it seems to me some kind of dispute resolu-
tion mechanism other than these high-profile charges of coverup,
charges from the Executive Branch of encroachment upon their
prerogatives. I think it is realistic to think in terms of men and
women in good faith on both sides of the fence sitting down and
huddling to come up with something together.
Chairman Boren. I know we have all been in those positions
where it has been frustrating, the BNL case was a good example,
during my last few months in my tenure as Chairman of the Intel-
ligence Committee. I really had no way of knowing whether or not
there is good faith in the Executive Branch or not.
As you say also, bits and pieces of information come to you, and
you don't know whether they are really comprehensive or not, or
whether they are giving you a distorted partial picture or a total
picture.
So I think it would be very valuable for us, either through a de-
claratory judgment proceeding or a panel of arbitrators or some
other kind of informal dispute resolution process, to look at that.
Mr. Thornburgh. I think your mention of the intelligence com-
mittees is an apt one, because there a better way was devised, and
in my experience that was a very useful way of dealing with some
of the sensitive relationships we had in the Department of Justice.
Chairman Boren. We usually found a way to resolve those ami-
cably, but there are times when we weren't able to, when we did
get into this BNL case matter, which really was a difficult one to
resolve, and to know whether we were resolving it appropriately.
1 Mr. 'Thornburgh. It is still a criminal prosecution to come.
Chairman Boren. It is still ongoing. 'That is something I would
like for to us look into.
Did you have much experience, and I gather it is probably a
little different, the kinds of problems you outlined are probably the
more convincing ones, but jurisdiction between the committees was
really pretty much — you weren't subjected to fragmented jurisdic-
tion so much, you were really dealing with the Judiciary Commit-
tee, weren't you?
Mr. Thornburgh. Occasionally in the higher profile, more con-
troversial areas, we would have to deal with other committees, but
the Judiciary Committee, the strength of the Judiciary Committee
insofar as the Justice Department is concerned is that we deal on a
day-to-day basis, and I use that as a contrast with some of our
forays into other areas where communications did break down and
we had some kind of outlandish confrontations.
And that relationship, taken by what was referred to earlier as
the desirability of reducing the number of committees and given a
point of contact on things generally for Executive Branch depart-
ments, it seems to me that would add as well in the area I am con-
cerned about.
39
Chairman Boren. Let me ask both Mr. Volcker and Mr. Brade-
mas this question. It goes back to the fragmentation.
Chairman Volcker, you talked about the lack of priorities. You
were just confronted with a mass of questions and material without
any sense of what it was that was really important, and without
there being more or less a traffic cop on the congressional side to
say, Look, here is the number-one issue that is of concern to Con-
gress this week, if you have got a little bit of time answer a ques-
tion or come back to us, this is what we want the information on.
And also, your comment in terms of micromanagement versus le-
gitimate and intelligent oversight, which you deemed was needed.
And I would address this same question also to John Brademas
from his own experience.
One of the things that we have heard a great deal about is frag-
mentation. Senator Byrd has appeared before our joint committee
and talked about the fragmentation in the lives of individual Mem-
bers of Congress. You are on so many subcommittees, pulled in so
many directions. We used to have rules restricting the number of
subcommittees you could serve on. It is more honored in the breach
than in the keeping of it. We have one Senator who actually serves
on 24, maybe it is 22 committees and subcommittees. The average
is now up to 12. That is an average.
The problem in the House isn't quite so severe, but it is increas-
ingly severe. You talked also about the large size of some commit-
tees, which makes them unwieldy.
I wonder — and again, this goes back to setting priorities — the In-
telligence Committee which I chaired, we didn't have subcommit-
tees. We knew we had only so many hours a week to devote to the
work of that committee, and it took an enormous amount of time,
probably 20 hours a week on the average. By not having subcom-
mittees, at least we were sure that the committee was spending its
time on those matters that were most important.
I think if we had had 10 subcommittees, each one of the Mem-
bers that had a subcommittee would have felt that he or she had to
have hearings on something to justify the subcommittee, and
maybe one subcommittee would have had the four most important
subjects and the other subcommittee wouldn't have had any of the
top 10, but if you had all those subcommittees, you more or less
divided the time, each subcommittee got to have a hearing on
something, and you might have hit two of your top 10 most impor-
tant subjects before the committee, that you might have spent a lot
of time on things that were in the next echelon of problems. So it
becomes hard to set priorities.
The other thing that it seems to me is that it does lead to unnec-
essary duplication of hearings with the Executive Branch. If we
had fewer committees and perhaps rules that if the same set of wit-
nesses were going to be presented on the same subject, you have
joint hearings, so that the Chairman of the Federal Reserve is not
called eight times before eight different committees to give the
same opening statement, respond to the same question each time
with a little less interest and stimulation and learning going on
than the previous one.
Also, it is so hard for us, and I think it has led to — this is the
only point where I perhaps disagree with the President and Con-
40
gressman Brademas — I find that in a way, by having more and
more committees looking over less and less, each one of them look-
ing over less and less, each one of them fully staffed and so on, we
are so fragmented we don't have time for important things.
I remember, as an example, a couple of years ago we were trying
to resolve the civil rights bill, and there were four Democrats and
four Republican Senators appointed by the two leaders to try to get
together, work together with the then Bush White House, which
vetoed our two versions of the bill. We tried to get a bill that would
pass muster and be signed by the President and come to a decision
on the issue.
It took about three weeks before we were able to set a time at
which all eight of the Senators said they could be there at the
same time, because they were on so many committees doing so
many things. When we finally set the time, we met for an hour. I
don't think there were more than two or three of the same people
in the room at the same time during the course of an hour. Two or
three people were there in the beginning, then they had to leave to
go to a committee meeting, two or three in the middle, and then
two or three in the end of, and we couldn't have any kind of delib-
erations because they were being pulled and tugged in so many dif-
ferent directions. So we had less to say to the Executive Branch
and the Executive, less influence because we were split in so many
different directions than we would have had if we had had less as-
signments and responsibilities.
I wonder if you think we would have been better off by imposing
the rules on the number of committees and subcommittees our
Members can serve on, trying to restrict that maybe to a couple of
committees and two or three subcommittees, and limit them.
Some of our Chairmen have said they wish they could say, you
can't have any more than two subcommittees or three. Everybody
wants to say they are a Chairman of a subcommittee or Ranking
Member of some committee. If we did that, we could probably
reduce somewhat the number of staff and really focus our efforts
and points of contact with the Executive Branch.
I wonder how the two of you would react to that, having seen
this from both sides.
Mr. VoLCKER. You have been much more eloquent than I, Mr.
Chairman, in making the kinds of points I was trying to make. It
seems to me the thrust of what you are saying is very much in line
with my own instincts. I recognize, however, it is probably a lot
easier for both of us to say that than to actually do it, in the com-
plexities of the real word where there are so many issues and all
the rest.
But let me just say in supplement to what you said, I think there
is something to be said for the continuity of this relationship. It is
not just a question of size and number of meetings and all the rest,
but I have always been worried in terms of the people arguing for
term limitations that the Congress itself will lose a certain exper-
tise among the Members, that is often extremely helpful in know-
ing, in having enough background about the operations of a par-
ticular agency that they know the kind of questions to ask, they
know some of the background of the issues, they can probe more
successfully and more constructively than can a, at the other ex-
41
treme, a freshman Member who may be full of new ideas and
energy but doesn't have the same background. You need a mixture.
I would hate to lose the experience and continuity that the most
experienced Members of Congress often bring.
Mr. Brademas. I agree with what Paul Volcker just said about
the adverse impact of term limits on the development of expert
knowledge on the part of Members of Congress.
Beyond that, another reason for opposing it, and I could cite still
others, is that it would represent a great shift of power away from
Congress, from elected Members of the House and Senate to Hill
staff, and to the Executive Branch of government, and to career
civil servants and to politically appointed people. And I am a hot
separation of powers champion in this respect.
The second point that should be made to which Paul Volcker in
a sense alluded, when you talk about — I happen to agree with you,
there are too many subcommittees, and I agree with you that mem-
bership should be restricted in terms of both committees and sub-
committees. But let's not delude ourselves into thinking any such
change is without cost. It is not a zero-sum game. You are talking
about changing the configuration of power, because jurisdiction in
this place is power.
Just a word on subcommittee staff. My last 10 years in the
House I chaired the Select Education Subcommittee of the House
Committee on Education and Labor. As I remember, we had juris-
diction over the National Arts Endowment, National Humanities
Endowment, Museum Services Act, almost all the Federal library
legislation, the vocational rehabilitation program, education of all
handicapped children act, educational research, drug and alcohol
abuse education, environmental education, child day-care legisla-
tion, and I could go on.
I had two professional staff people and three secretaries, three
clerical people, to handle organizing the hearings on all the author-
ization and all the oversight. We did a lot of oversight.
And I am strongly of the view that Congress should be much
more vigorous and aggressive in carrying out its oversight responsi-
bilities. It is a great way to make a contribution to the public inter-
est. Deal with all of the interest groups who would be after you,
and handle the requests from your colleagues and the media.
Do I think we were overstaffed? I certainly do not think we were
overstaffed. We worked very hard and needed more help rather
than less.
Senator Reid. Mr. Chairman, could I just interrupt?
The problem is, lots of other subcommittees have had the same
jurisdiction.
Mr. Brademas. No, they did not, with respect. Senator.
Senator Reid. Just like we have FEMA walking in here, but they
report to 22 subcommittees.
Mr. Brademas. Not to the Select Education Subcommittee.
Senator Reid. That is one of the few they don't report to.
Mr. Brademas. That may well be. Were I still there I would have
had absolutely no ambition to reach out, knowing what I do about
it, to have anything at all to do with it.
Let me respond to I think an even more important question that
Chairman Boren has put. That has to do with priorities. I always
42
said to myself, I will make a public confession, if I were elected
Speaker — and I was third in line after Tip O'Neill and Jim
Wright — then I would have wanted to move the House of Repre-
sentatives toward creating some sort of analog of the policy plan-
ning staff in the Department of State, some entity, small in size,
that could look over the horizon of the next two-year term, look
beyond the life of a Congress, to a the next three or four sessions or
Congresses at least, to make some judgments as to what kinds of
issues would be likely to come up.
And I should think it would be wise, absent such an entity, even
now, following what. Senator, you are perhaps suggesting, if the
leadership of the House of Representatives would, working
through — and I now speak of the Majority party, because they are
in control — would work with the steering and policy committee, in
this case with the Democratic Steering and Policy Committee,
bringing in committee Chairmen, to talk about setting a schedule
of priorities for the Congress upcoming, in two respects at least:
policy, that is to say, authorizing work; and oversight, to get some
general sense of what the House ought to be talking about.
And if the Senate were of the same party, which has been the
case for some time now, after that exercise in the House, I would
hope that a similar discussion could go on between the House lead-
ership and the Senate leadership, where I should like to think an
analogous process would have been going on. And that, here again,
very important — you remember I said it all depends — if the Presi-
dent were of the same party as controls the House and Senate, that
there would be the kind of consultations to which, Senator Boren,
you were earlier alluding in your observations, with the President
and his top people, so that there would be some sense of where
each side stood, and try to put together some general outline of
where we were going.
To some extent that does go on, on and off. I have been here, as I
said, with Democrat Presidents and Republican Presidents, and if
you are a Democrat it is a lot easier if the President is of your own
party. But have in mind this. If you are in the House of Represent-
atives and you are the Speaker, that your capacity to carry out
such priority setting. Senator, to use your phrase, is limited by the
two-year term of Members of the House, is limited by the lack of
party discipline, is limited by the need of each individual Member
to get himself reelected or herself reelected, and that means going
out to raise campaign funds. And the present situation is one in
which every Member of the House becomes an independent con-
tractor, a many-political party, as it were.
When I was defeated in 1980, I frankly was having to raise most
of the money to organize the get-out-the-vote campaign, the voter
registration campaign, to finance the party headquarters, to bring
in the outside speakers. The whole shmear. I was not only the
senior elected Democrat from my State but I was the leader de
facto of the party, because of the rise of television, the decline of
strong party organizations.
I would make one other point that you have to have in mind,
which goes to another reason for the existence of this committee.
You cannot ignore in the process the relative roles of the budget
43
committees, the authorizing committees, and the appropriations
committees.
So I applaud and endorse your suggestion that we need to move
more toward priority setting. I simply have tried rapidly to indi-
cate the configuration of elements that any priority setter has to
take into account.
Chairman Boren. How would you feel about — you mentioned the
budgeting and the authorizing process. How would you feel about
buying the old budgets in which those in favor have argued that
you appropriate in one year and you oversee in the next? There is
a certain sense to it, and that you also provide the ability to plan a
little bit longer term.
Mr. Brademas. I haven't decided, and we are debating that in
the Carnegie Commission on Congress right now. Conceptually I
am attracted to it. Practically I haven't seen it spelled out yet in a
workable way.
Mr. VoLCKER. On that particular question I find myself conceptu-
ally attracted to it, but I knew I would find something to disagree
with rather strongly with my friend John Brademas.
I will state the disagreement more strongly than it in fact exists,
but for purposes of emphasis, I think the kind of approach he is
suggesting that Congress ought to spend a lot of time trying to get
together and establish broad priorities for work over a period of
years on the policy side is wrong. That should be the strength of
the executive. That is what they ought to be doing. They ought to
be preparing and thinking about a coherent program, and you have
a focus there in a President and his administration to do it. It
simply doesn't exist in the Congress.
The Executive ought to propose and the Congress ought to dis-
pose. The Congress is good at disposing. Their fun^ction is to pick
holes in what is proposed, as a matter of emphasis. To review a lot
of silly things that administrations are likely to propose without
understanding the complexities of the real world and all the dif-
fuseness of the United States, indeed all the political problems that
exist, it seems to me that is the strength of the Congress.
And I have this kind of ideal vision in my mind that the system
as a whole works best when the principal load is on the administra-
tion, any administration, to present a hopefully reasonably coher-
ent program over a period of years, recognizing the different inter-
relationships, and Congress is there to pick holes in it. If it is crazy
then
Mr. Brademas. Will Chairman Volcker yield for an observation?
I think it is revealing, I say to my beloved and distinguished
friend, as we like to say around this place, that he said what he
said about the role of Congress, because it is reflective, I do not say
pejoratively, of the attitude of one who has never been elected to
public office, including never been elected to the Congress of the
United States.
Mr. Volcker. I agree with that.
Mr. Brademas. I said earlier and I did not linger long on it, that
during the Nixon years, the administration of President Nixon, and
this was an area in which I was active legislatively, had nothing to
do with education whatsoever other than to veto the bill that Fritz
Mondale and I wrote. And the suggestion that Richard Nixon or
44
Ronald Reagan or George Bush, for that matter, because these get
into the stuff of our two-party system, should have been able intel-
lectually, morally, competently, to have come up with a thoughtful
program in, let's say, the field of education, I say this more with
respect to Reagan and Bush, even, than I would of Nixon, but I
make the point generally, is beyond reason.
You must understand, Mr. Chairman, that Members of the
Senate and the House of Representatives are intelligent, they have
been elected by the people, and they are quite capable of develop-
ing major public policy initiatives and have done so throughout the
course of recent years, and will continue to do so. And that Con-
gress has staffed itself with the congressional budget operation and
an Office of Technology Assessment and is moving in other direc-
tions to strengthen its capacity to legislate, makes my point.
I am not getting into whether you dislike or like it, but most
policy was not invented in the White House or the other end of
Pennsylvania Avenue, but here. But I reject the idea that all intel-
ligence and competence for developing policy initiatives is with one
man or even two, or two women, for that matter, who have been
elected, and that the little such capacity exists on the part of the
535 people here.
Chairman Boren. I am going to let Chairman Volcker respond.
Then I am going to let General Thornburgh — we may engage in
some informal dispute resolution on who will have the last word.
Did you have another comment you wished to make?
Mr. Volcker. I yield to no one in my willingness to have Con-
gressmen take the initiatives where they think it is important. But
this vision of an overall setting of priorities for an administration
over a period of time I don't think speaks to the strongest element
in the Congress.
Mr. Brademas. There I am more sympathetic.
Mr. Thornburgh. I will bypass for the opportunity of a point-by-
point examination of John Brademas's characterization of the Bush
and Reagan administrations, both of which I served in.
As an aside, I just finished a year's service in the United Na-
tions, an organization that has a biannual budget, to no perceived
advantage that I saw. Of course, their budget procedures are kind
of surreal in the extreme. But there wasn't any advantage that I
saw in the biannual process there as based on my knowledge of the
budget process.
The budget process is simply a matter of following it and making
it work. I am sorry, gentlemen. But that is really what it comes
down to.
Senator Sarbanes. Mr. Chairman, could I just observe that his-
torically speaking in this country, through much of our history, the
moving party on policy was the Congress and not the President.
Woodrow Wilson wrote his landmark book in 1905 entitled Con-
gressional Government. He spent a good deal of time pointing out
that through most of the 19th century, the impetus on legislation
was really with the Congress, and the Executive was a massive
actor in that whole process.
I don't mean that is the way it should be today, but just as a his-
torical matter, this notion that the President proposes and the Con-
gress disposes has a relatively recent origin.
45
Chairman Boren. Probably with the re-creation of the modern
Presidency with Roosevelt, he probably did as much to change that
earlier
Senator Sarbanes. And Wilson himself when he became Presi-
dent. He thought the whole thing through, and he had some very
definite ideas about what he wanted to do.
Chairman Boren. Vice Chairman Dreier?
Mr. Dreier. Thank you very much, Mr. Chairman.
And thank you, gentlemen, for your very helpful testimony.
I first have to say to you, Chairman Volcker, I came here as a
young man, as a freshman Member of the Banking Committee, and
I always was thrilled as I sat on the first row, the last to be able to
question you, and I could go and have lunch when the testimony
began at 10:00 in the morning, I could come back at 1:30, quarter of
2:00, have the opportunity to ask my questions of the Chairman of
the Federal Reserve. So I want to thank you for that.
But I do agree with you that I think we should deprive some of
those newer Members of that, because as we look at this challenge
of trying to have those who have been in the Executive Branch
meet their responsibilities, constantly testifying before committee
after committee is I believe a terrible waste of time and resources
because of all of the staff preparation that has had to go into that
process.
Now, the natural question, since we are all concerned with it is,
what do we do as an alternative? We have before this committee 14
different proposed recommendations that have come from the Li-
brary of Congress, the Congressional Research Service, which have
outlined ways in which we might make some changes.
Now, I hesitate to ask you to look at those after the hearing and
respond to us, but I would like to ask you to look ^t some of the
proposals that we do have for changing the structure of committees
here and provide us with some sort of response, because I think
that while I know many different Cabinet members had the oppor-
tunity to do that, my particular experience — ^by the way, I am no
longer on the Banking Committee, I serve on the Rules Committee
now, and we don't get any members of the Executive Branch to
come before us, just my distinguished colleagues.
But let me say that I would like to have you provide us with
your thoughts on some of the proposals that we have had.
I would like to ask our distinguished Whip about the Rules Com-
mittee on which I now serve. I have been making this case time
and time again throughout this committee. Your last term here, 85
percent of the rules under which we considered legislation were
open, and 15 percent were restricted, limiting in some form the op-
portunity for Members to offer amendments to legislation. I
wonder if you would care to comment on that tremendous change
which has taken place.
We have had no more than two or three open rules in the 103rd
Congress. Here we are halfway through the first session of the
103rd Congress, and the 102nd Congress, 66 percent of the rules
were restrictive, juxtaposed to that, 15 percent when you had your
last term here, and I wonder if you might care to comment on that
for us.
46
Mr. Brademas. What you are talking about is a good example of
an ongoing theme, subliminal, I think, that has to undergird the
deliberations of your committee. It is the war between order and
liberty, if you go back into Western political theory. It is the war
between effectiveness and openness.
It is easy to attack the Speaker and the leadership of Congress
for not getting the job done. Why can't they get those bills passed?
Why do they have so much trouble moving ahead on legislation?
Well, one way to get the job done in terms of moving ahead on
legislation is not to allow so many open rules, which contribute to
the already existing barriers in our kind of system to the passage
of legislation. But the minute you move away from wide open rules
to restricted rules, there will then be sharp attack, normally on the
Speaker and the House leadership, for gag rules, making it impos-
sible for the Minority, sometimes — usually Republicans in the
present situation, but sometimes conservative Democrats who say.
We are not able to be heard, we are not able to have our views
known.
Now you look over at the other body, at the Senate, and you see
the analog of that kind of a situation, where there will be com-
plaint in the press, why can't the Senate get to legislation, why
can't they get to a vote on an important issue like campaign fi-
nance reform? Well, absent 60 rules for cloture, a determined Mi-
nority can make it impossible.
And I guess my response therefore is that, again, it all depends.
It depends on what your goals are, and it depends in no small part
on what your politics may be.
Mr. Dreier. With all due respect, I find that argument rather
weak, especially as you look at the House. One of the problems
that we have had this year is we have been looking desperately for
legislation. We have had a tremendous lull, and even when we
have had literally nothing to do during a week, we will still have a
restrictive rule.
Mr. Brademas. In that respect that has nothing to do with it.
Mr. Dreier. If you are talking about moving legislation through,
it is not as if there is something at that is delaying the time
around which you can consider that legislation.
Mr. Brademas. The gentleman wholly misstates my argument. It
is not a matter of your having nothing to do. It is a matter of
whether or not you want to be effective in forging a majority to
pass legislation.
It is not because Members of the House are sitting around fid-
dling their thumbs, and therefore why not have an open rule so
they can offer as many amendments as possible. That is not my
point. My point is rather the greater the extent to which you
permit open rules — I generalize in response to the gentleman's
question — the greater the difficulty the leadership and whatever
committee may be managing the bill will have in putting together
a majority for passing the bill.
Mr. Dreier. Under your leadership why did you have so many
open rules?
Mr. Brademas. I wasn't forging the rules at that time. The
Speaker was putting together the rules. And the fact that you cite
the number of open rules is really not all that persuasive to me,
47
unless we make a case-by-case analysis of the legislative bills to
which those rules ran.
The importance of the legislation could have a great deal to do
with whether or not the Speaker and the Rules Committee decided
we are going to have an open rule or a restricted rule. And also,
what was likely to be the set of amendments that would be offered
in the event that you did not have a closed rule.
So I am very wary, I am trying to make clear, Mr. Dreier, of gen-
eralizations about these matters. I would like to see a case-by-case
analysis of the rules. And I am not here campaigning against open
rules. That is not the point. I am saying, it all depends.
Mr. Dreier. Thank you very much.
The time has run out on a recorded vote for me on the Floor, and
I would, Mr. Chairman, appreciate you looking at those proposals.
Mr. VoLCKER. I will be delighted to look at it. I always welcomed
questions you felt were important.
Chairman Boren. Senator Sarbanes?
Senator Sarbanes. I wanted to point out in my days in the
House, the Ways and Means Committee reported bills, particularly
on tax measures, invariably came out under a closed rule. You
don't apply the closed rule unless a majority votes to do so. They
can overturn it, of course, the theory being the committee sort of
crafted a tax bill which was very complicated, involved a lot of
tradeoffs.
I remember Wilbur Mills speaking to this point on many occa-
sions, and that then to go to the Floor and have kind of little, dis-
creet changes in the tax code offered could sort of unravel the basic
symmetry of the tax bill, and that therefore it was reasonable to
present it to the House on the basis of either a vote for or a vote
against this package. v
In the Senate, the procedure is so out of hand that you can offer
on a bill any amendment whatsoever, even if unrelated to the sub-
stance matter of the legislation that is before you. So you get some
legislation on topic A, and you will have amendments being offered
on topic M that has nothing to do with topic A. It is a breakdown
in the system. And so all of a sudden you find yourself dealing with
a subject matter completely foreign to the subject matter of the leg-
islation that has been reported out of the committee.
Actually, my impression from my days in the House — and John,
we served together — many of the rules, the distinction between
closed and open doesn't really cover the waterfront. We had many
rules were sort of modified open rules, so to speak. The Rules Com-
mittee would sort through a number of proposals and make certain
amendments in order, and those would then be considered in the
course of considering legislation.
That seemed to me often to be a fairly sensible way of doing busi-
ness. You could get the work done, you could consider major alter-
native courses of action. You weren't sort of done in constantly by
a whole series of sort of minor amendments always picking at the
thing. But you could get alternatives considered as well.
Chairman Boren. Well, I think this is an area in which both
bodies can learn something from each other, because obviously we
are at the two extremes in the way we are functioning now. There
are times on the House side when Members feel that significant al-
48
ternatives don't have a chance to be considered. But on the other
hand, as Senator Sarbanes as said, with our total lack of germane-
ness on the Senate side, we vote on the same things over and over
again.
We had a vote on the Floor very much like that today, on mat-
ters not related to the pending bill, and there is no way at all to set
some sort of coherent framework in which to operate. There has to
be some way we can have a procedure that will work better.
Senator Sarbanes. I also want to make this observation. This is
a very political observation, but I am prepared to stand behind it. I
think one of the things that happened in the Congress in both the
House and Senate is more and more amendments being offered not
essentially to craft the legislation that is before you, but simply to
make a political statement. These are the amendments that are
being offered simply to put people on the record on what is the cur-
rently hot-button political issue. In the Senate, it may even be un-
related to the legislation before us. In the House, I guess it has to
be germane, but it is not really directed towards sort of shaping the
legislation as much as it is trying to get people spotted politically.
And that is becoming increasingly hard on the political struggle,
regrettably so, in my opinion, in terms of developing legislation.
Chairman Boren. I think you are absolutely right. It is really
material for a 30-second spot. The amendment as drafted makes it
almost impossible to explain within 30 seconds why you voted one
way or another.
Really there is an enormous amount of time now being wasted
through this kind of procedure as opposed to really legislating and
getting down to business.
Mr. Brademas. Mr. Chairman, I think it was Mark Twain who
once said, "God loves fools and the people of the United States."
Given the problems you have been airing here today, let's hope so.
Chairman Boren. Well, thank you all very, very much. We have
appreciated the testimony and the lively interchange.
We are glad that while the three of you are not currently active-
ly in our Federal Government, that there certainly hasn't been any
diminution of the stimulating testimony you would give and the in-
tellectual interchange. We thank you all very, very much for being
with us.
We stand in recess.
[Whereupon, at 4:55 p.m., the committee was adjourned.]
INTERBRANCH RELATIONS
THURSDAY, JUNE 24, 1993
United States Congress,
Joint Committee on the Organization of Congress,
Washington, DC.
The committee met, pursuant to recess, at 11:06 a.m. in room
SC-5, The Capitol, Hon. Lee H. Hamilton (co-chairman of the com-
mittee) presiding.
OPENING STATEMENT OF HON. LEE H. HAMILTON, A U.S.
REPRESENTATIVE FROM THE STATE OF INDIANA
Chairman Hamilton. The Joint Committee on the Organization
of Congress will come to order.
Today the committee is continuing its hearings on Legislative-
Executive relations, with special focus on Congressional oversight.
Our distinguished witnesses are particularly knowledgeable
about this issue because they are among the most important House
and Senate leaders in the oversight area.
Many witnesses who have appeared before the Joint Committee
have stated that Congress is doing an inadequate job of oversight.
As former Speaker Tip O'Neill used to say, Membei^s like to make
laws, but they shy away from oversight. This committee and its
members recognized the critical importance of oversight in ensur-
ing that our laws are implemented according to Congress' intent;
eliminating waste, especially in this era of fiscal scarcity, where
every dollar counts; and making sure that Executive policies reflect
the public interest. Given the size and the scope of the national
Government, with its $1.5 trillion budget, the Joint Committee
must be open to ideas and suggestions about how we might
strengthen this vital function. I believe the following points deserve
particular consideration.
Many Members suggest that there are too few incentives for
doing oversight. They say oversight is dull, difficult work with little
payoff in the press or with the voters back home. Is that an accu-
rate assessment? And if it is, what can we do institutionally to en-
courage more and better oversight?
Are there specific reform proposals or rules changes that we
should consider in the oversight area?
Do we need to achieve greater coordination and cooperation
among committees and between the House and the Senate in the
conduct of oversight?
Is Congress doing too much micromanaging and not focusing
enough on the overall performance of agencies?
(49)
50
These are several of the questions about Congress' oversight role
that should be addressed.
Our first witness today is Representative John Conyers, Jr., who
has been representing the 14th District of Michigan since 1964.
Currently he is Chairman of the Committee on Government Oper-
ations, a position he has held since 1989. He also sits on the Judici-
ary Committee and the Small Business Committee.
We would like to welcome you before the Joint Committee, John,
and we look forward to hearing your testimony. Your testimony, of
course, will be included in the record in full.
Let me first call on the Vice Chairman, Mr. Dreier, for any com-
ments he might have.
Mr. Dreier. Thank you very much, Mr. Chairman. I, too, want to
join in welcoming our good friend John Conyers here.
I would like to say that this issue of Congressional oversight is
one which has been hotly discussed here in this committee, and it
is going to remain a major topic of concern for us. That is why
your testimony is going to be very helpful as we proceed with our
deliberations here.
I welcome you. We are happy to have you.
Chairman Hamilton. You may proceed, sir.
STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. Conyers. Thank you, gentlemen and colleagues. I am de-
lighted to be here.
I begin my comments this morning by offering to you my sincer-
est congratulations for the scope of the task with which you are
charged, and the constancy with which you have taken it. I am
maybe the 100th witness that you have listened to. That's a bit of
testimony there, even for the Rules Committee or Foreign Affairs
or Government Operations. I congratulate you sincerely. I realize
that with the concluding of the testimony, that still doesn't end
your responsibility. What it all adds up to and how it will be inter-
preted and what recommendations from this Joint Committee,
made up of distinguished Members of the Senate and the House, is
something that not just the Members of the Legislative Branch
await, but in a sense those of us who have been watching the devel-
opment of the Federal process. It has been changed. When we came
in, Lee, there were major changes wrought that have been felt to
this day. There have been other kinds of modifications grafted on.
We now come to this setting on this day, at this time, with a gen-
erally frustrated citizenry waiting to see what's going to happen.
Are thesis guys really for change? Is this just another way to pla-
cate citizens who feel that the processes have become overloaded
with procedure, that they are counterproductive, that they can't
get an3rthing done, that there's too much gridlock?
All of these things really add to the responsibility that we have
to try to step back, and you have all been carefully selected to ex-
amine our own shop, see if we can come up with some sensible
changes that will put it in order, make it operate a bit smoother.
It is to that end that I am pleased to join you with a few com-
ments and suggestions of my own.
51
I think that joining the Government Operations Committee a
number of decades ago was probably, without knowing it, the
smartest move I ever made in my career. I just want to tell you
why. I'm not seeking any new members; we've got 43, and that's
more than enough, thank you.
But the whole idea of being in a position to oversight the Execu-
tive Branch of Government, to try to remedy the very problems
that bring us here today, in a sense — inefficiencies, overlapping,
duplication, the kinds of problems that violate process in terms not
only of budget but in terms of the way business is done in procure-
ment— is a tremendous opportunity. As Chairman of my commit-
tee, I have to interface with more of the other chairmen in the
Congress than perhaps any other committee Chair. It brings me in
contact with the Executive Branch of Government in a way that no
other committee does. We have direct jurisdiction over many of
their operations, plus any changes that would be proposed in the
Executive Branch. Currently, elevating the Environmental Protec-
tion Agency to a department is in our jurisdiction, and any other
modifications; budget considerations and enforcement are all part
of our jurisdiction.
So it is a jurisdiction of which I am very, very proud, to be lead-
ing a very important part of our Congressional responsibility with
my members, both Democrats and Republicans. And why? Because
most committees, even though they have the oversight authority
themselves — it is inherent in every committee to be able to over-
sight their jurisdiction — the reality that every member of your
committee knows perfectly well is that that's probably the least at-
tended-to responsibility. I say this as uncritically as I can, that any
committee deals with its own oversight. Don't ask me why; I hope
you don't, because it's a bit of an anomaly. Why wouldn't you
watch over your own legislative product and see if it s working?
But in our governmental process, we're moving on to a new sub-
ject, a new issue. Things are always changing so fast that it's very
hard to really go back.
So the Congress, in its wisdom back in the 1940s, saw that there
should be one committee that doesn't have too much other jurisdic-
tion except to review these things. For example, with reference to
the military and the Pentagon, where the procurements are larger
than anywhere else in our Government, I've been interfacing with
the Chairman of the Armed Services Committee for years; we have
worked on many matters, and it always happens that we pick up a
subject — the C-17, just to pull one out — the question is not whether
we should build a cargo airlift capability or what kind it should be,
but what have been the problems with the one that we have?
And while the committee of authorization is locked in a very dif-
ficult question of whether to go forward or to build them or not, we
are looking at — just to speak about this one subject — a very dismal
track record, laden with inefficiencies, duplications, questionable
activities not only on the part of the Defense Department, but the
contractors themselves. And unravelling that would have been a
job of such magnitude that the Armed Services Committee is trying
to get up to the new speed, the new order of the day. Without a
Soviet superpower, we have to reconfigure the entire military es-
tablishment of the United States. They really don't have a lot of
52
time to take 10 men and women off to look at what the procure-
ment problems were with the C-17 to cause wings to fall off, tests
to be fudged and failed, questionable loans, and the whole nine
yards. They said, "Look, you take care of it. Government Oper-
ations; that's what you're here for." And we do.
So our job is an enormous one. I can tell you, we don't pretend to
have examined every question that could be raised and brought to
our committee, but we feel that the larger ones have an order of
magnitude and public attention and outcry focused on them that
lead us to picking these subjects selectively and moving along.
What has happened is that your Committee on Government Op-
erations has, by definition — and this is the General Accounting
Office, not our own committee report — we submitted $310 billion
worth of activities, procurements, and questionable conduct that
was lost or mismanaged in the course of a very short period of
time. We're proud of that. Now what we're trying to do is work out
a system where we regularly examine these questions and then go
back to them to find out what happened. Last year for the first
time in the oversight history of the Congress we compiled in one
volume all of the problems that came to our attention and how
they were addressed. This year, in addition to continuing that
study, we are going back to determine what happened to the "dirt
under the rug," so to speak, that we discovered last year and the
year before. Is it still there? Was it cleaned up? And, also impor-
tantly, how was it cleaned up? So we now have a tremendous focus
on how this matter should be dealt with.
The two most important pieces of legislation that we're proud of
are the Chief Financial Officer Act where, after many years of en-
couragement from Chuck Bowsher at GAO, we were able to pass
legislation in both Houses, with a tremendous assist from Chair-
man of John Glenn who chairs my sister committee in the Senate.
This was a Chief Financial Officer Act where the accounting and
bookkeeping responsibilities were vested in specifically-named and -
trained people, not to be patronage appointments or a casual as-
signment of duty, and a method of accounting that would be Gov-
ernment-wide so that any accountant could read and interpret it,
and that it would be regularized, because in the process we actual-
ly found that many of the books in some of the departments and
agencies — you couldn't even make a preliminary report, they were
in such disarray. I say that kindly; I will not mention names. It is
all in the process of being repaired now because of that act.
We also have a Capital Budgeting Act which divides the budget
between capital accounting and the rest of their monthly budgeting
so that we don't have this big, one-single-pot theory of accounting
where all of these very different matters are brought into play.
We have been the real champion in fighting Government waste.
We are very proud of that record. I want to tell you, we would
strongly recommend against adding any jurisdiction to the Govern-
ment Operations responsibilities. In my report I point out that we
have a breakdown of only 1.5 staff members for every major agency
in the Federal Government. That should tell you that there's
plenty of activity that we can't get to We have been zero-budgeted
for the last two budget seasons, zero-budgeted. The people who
have brought back a record of $310 billion worth of savings are
53
zero-budgeted, and we are left with less than two staff persons for
this major committee.
The Congress has made some moves already, and you are all
aware of them. One of them is that we've taken 6 percent reduc-
tions twice, in October of last year and just recently, and I think
that that's instructive.
If I could just conclude on a note of recommendation, I would
like very much to hope that there is serious consideration given by
this Joint Committee to two-year budgeting. Every year is such a
roller-coaster. It creates such instability. It precludes us from seri-
ously looking around the corner at things, and I'm hoping that we
can deal with it.
The second recommendation I would leave with this committee is
that we stop loading the committees up with incredible numbers of
membership. To put 55 members on one major committee, to me is
to tie its arms behind its back.
I hope we will look at the difficulty, the delay, and the legislative
trouble that has been caused by the rules in the other body that
allow filibustering. If one Member can stop any piece of legislation,
it seems to me that this ought to be a subject matter that can be
reviewed and analyzed by this committee.
The question of non-germaneness, by which we are honor-bound
but which does not apply to the other body — believe me, I respect
them fully; it's a rule they haven't been able to address — but non-
germaneness allows for the greatest kind of mischief and leads to
incredible delays in conferences, as all of you who have been on
conferences know. And then to legislate on appropriations, at least
we have a rule preventing it; and for it to happen, there has to be
a waiver permitted. But again, there is no such limitation in the
other body. None. It seems to me that it's there that there ought to
be some symmetry in terms of the rules of procedure.
These, plus my written comments, are the things that compel me
to come before you. I again commend you for the work that you
have done and that is still in front of you.
Thank you very much.
[The prepared statement of Mr. Conyers is printed in the Appen-
dix.]
Chairman Hamilton. John, we appreciate your testimony very
much. I will have some questions, but let me begin with the Vice
Chairman, Mr. Dreier.
Mr. Dreier. Thank you very much, Mr. Chairman.
John, I think it was very helpful testimony. I did get a chance to
look at your prepared statement. I would like to raise a couple of
items which you haven't discussed here but which are incorporated
in your prepared statement.
Specifically, committee structure is a real challenge here. By the
way, I think there are 60 members on the Appropriations Commit-
tee; you had mentioned 55. That struck me. One of the big things
that we're trying to deal with here is, where do we go as we look at
the challenge of trying to structure our committees? Do we in fact
put into place parallelism between the House and the Senate so
that we don't have a few conferees from the Senate and then a
whole load of conferees from six committees in the House?
54
What should we do about the fact that we have 266 or 299 — we
hear all these different figures — committees and subcommittees in
the House and the Senate? Should we bring about a reduction?
So the natural question that follows is, if we're not going to go
from the ground up, which I am inclined to want to do in bringing
about a major change here, do we take some of the committees that
now exist and fold them into other committees?
I noticed in your testimony that you're opposed to the idea of
having the Post Office and Civil Service Committee and the Dis-
trict of Columbia Committee folded into yours, and in your pre-
pared statement you say that you believe that the specific chal-
lenge of trying to deal with oversight and eliminating waste in
Government is such an overwhelming one that you don't feel that
you can take on those other two committees, as some have pro-
posed. I wonder if you can share some thoughts on that.
And then, if you don't want to do that, what do we do when
we're trying to deal with this overwhelming number of committees
and subcommittees?
Mr. CoNYERS. Let me thank you very much. Brother Dreier. I ap-
preciate your focusing in on a particular problem that comes
within the parameters of our committee about these other commit-
tees. It is true that the Senate has combined these functions.
First of all, let me give you the solution, and then I'll go back to
that. I say this with great trepidation. I hope that my colleagues
don't read this and become infuriated, and I hope it is not misinter-
preted in the media. I beg your humble indulgence.
May I ask you if there is still some rationale that has escaped me
in 28 years of service that requires that we separate the authoriz-
ing and the p.ppropriating processes completely apart?
Mr. Dreier. Haven't you found that in the Constitution yet?
[Laughter.]
Mr. CoNYERS. Yes. Yes.
Isn't there some way that we could vest in those who determined
the factual matters of the issue with — as we say in Detroit-— how
much bread is going to be put on the resolution of these subjects,
rather than start it all off in another committee which, with all
due respect to the feudal lords of the appropriations realm, they
haven't heard one word of testimony in the authorizing committees
and now, in their great wisdom, are going to attach how much
money ought to be put to it.
It seems to me that you could accomplish a major reconfiguring
of the Congress if you would eliminate — I haven't computed the
number of committees and subcommittees, but it would be an im-
portant way to move forward.
Now, to the problem to which I alluded in my written testimony.
Frequently because of the way we're configured in the House, Mr.
Dreier, the problems of the Federal Civil Service are given far
more — far more — scrutiny in the House by being a separate and
free-standing committee than they are in the committee of my dear
brother from Ohio, in which it is subsumed.
Now, the District of Columbia — with all due respect, in effect we
are talking about a State in the Union
I just mentioned your name, and not in vain. The red light went
on.
55
[Laughter.]
Senator Glenn. Go ahead, John. That's fine. That's for me, not
you.
[Laughter.]
Mr. CoNYERS. Okay.
The District of Columbia — if we were talking about the Civil
Service authority and Government Operations, that would be one
discussion. But to take the District of Columbia — in effect a State,
a de facto State — and say, "Hey, look, we've got to cut somewhere;
we've got to constrict; we're going to make these angry citizens real
happy by letting them know that we've taken these two commit-
tees and folded them into another committee whose jurisdiction
prevents them from discharging their central responsibilities of
oversight, waste, inefficiency, abuse, as fully as they would like.
We're going to take the whole question of oversighting the District
of Columbia" — and some wag will say, "Well, yes, that's oversight,
too." So you are oversighting the Pentagon and the Executive
Branch and EPA, so throw in D.C.
And I think that begs the question. The District of Columbia, in
the current throes that it is in, in a serious attempt to have us and
the public reconsider whether they should be considered as a State,
as history suggests that they once were, that this is too important a
matter to be tossed to one subcommittee in Government Operations
and say, "Okay, guys." And there again, the House goes into far
greater detail than does our other body in that regard in Federal
Civil Service matters. My junior Senator from Michigan serves
with great distinction on the Government Affairs Committee,
chaired by my friend from Ohio. The Federal Civil Service is just —
frequently we end up with the kinds of problems and tensions that
we're all too familiar with. ^
So in this area, Mr. Dreier, I respectfully would recommend
against us trying to reach this symmetry which, as a general prin-
ciple, I would accede to. But in this instance, I don't see where that
would be helpful to our legislative purpose.
Chairman Hamilton. Mr. Allard?
Mr. Allard. Mr. Conyers, I would like to welcome you personally
to the committee and thank you for taking the time to come here
and testify before us.
Under the Rules of the House, the Committee on Government
Operations is instructed to inform other standing committees of the
House about the findings in its oversight investigations. Could you
describe for the Joint Committee how this function is performed?
Mr. Conyers. Yes. It is performed in several ways, Mr. Allard.
The first is that we have direct communication with the Chair-
man. Before you came in I alluded to the fact that I have more per-
sonal
Mr. Allard. Let me interrupt you. Is this a formal communica-
tion? Or is it more or less informal, where you just sit down and
talk with him? Or is there actually a communique or a memo or
something like that?
Mr. Conyers. Yes. It's both. We write, but I go far beyond just
written information, because I see them. Les Aspin and I have
worked together on every single matter of procurement that has af-
fected the Pentagon, no exceptions. And frequently we do the same
56
thing with subcommittee chairmen. The same thing obtains with
Ron Dellums, the present Chair of that committee, and so on down
the line. In Foreign Affairs
Mr. Allard. Let me interrupt you here. Have you made an as-
sessment of how effective you are with your recommendations to
the other committee? Do you feel like you're really listened to on
your recommendations?
Mr. CoNYERS. Well, I wish I could give you a general answer to
cover that, but honesty being the course of conduct to which we are
bound, sometimes I get lousy noncooperation. It doesn't even reach
the level of cooperation. Terrible. That's not to dismiss the fact
that in many other instances I get excellent cooperation, and we
save ourselves a lot of time, and sometimes even hearings, just by
sitting down with the chairmen.
Mr. Allard. When you don't get cooperation, what is your
follow-up? Do you just have to say, "Well, we tried, we did our
part," or is there some follow-up where you feel you can force some
cooperation or bring about some cooperation?
Mr. CoNYERS. There are several things that happen in that situa-
tion, Mr. Allard. First of all, negative publicity is not desired by
anybody leading any committee in the Congress that I've ever met
in the course of my career. We don't resort to it lightly, but this is
the public's business that we're dealing with.
The second thing that we do is that with this compilation of all
the instances of inefficiency, abuse, mismanagement, failure to
follow policy or statute, we now have a documented trail so that we
don't reinvent the wheel every Congress and just walk out at the
beginning of each Congress and say, "Well, what do we oversight
for the next two years?"
We have the record of each agency or department, and from
there we pick up where we left off.
In that regard, there were many people who said, "Well, we just
had a change in the White House. I guess Government Operations
isn't going to be that active anjrmore. We've got a Democratic
chairman"
Mr. Allard. Let me interrupt you a little bit because my time is
running out and there's another thing I wanted to bring up.
Mr. CoNYERS. Could I just make this point, sir?
Mr. Allard. Yes.
Mr. CoNYERS. I don't want to leave this unresponded to.
We are busier with a Democratic Administration than we were
with a Republican Administration, and that's not to impugn Presi-
dent Clinton's new organizational group, but there are so many
things that we are bringing to their attention for correction that
we're busier now than we were in previous Administrations. So it
wasn't a matter of being an attack dog for the Congress against a
Republican Administration; not at all. We are moving with the
same persistence.
I might say here that it was our committee that sued the Adviso-
ry Panel on Health Care, questioning whether they had a right to
operate without full view in public and observing all of the rights
of the Freedom of Information Act and Privacy Act that were af-
forded. We had no reluctance about that.
57
Mr. Allard. My understanding is that with the 1974 reforms,
your committee was required to file an oversight plans report at
the onset of each Congress. Has that been done or not been done?
Mr. CoNYERS. First of all, it has been done. We have one for
every single year for which I have been Chairman. The answer is,
absolutely.
But unfortunately, and this is kind of important, everybody
doesn't rush breathlessly to the Printing Office to read the reports
that we file, and that's why the personal and informal communica-
tion becomes so important, sir.
Mr. Allard. Do you think there's something that could be done
about cooperating with the Senate side on some of your responsibil-
ities? I would like to hear some comments you might have about
coordinating some of your oversight responsibilities with the other
body.
Mr. CoNYERS. Well, I am proud to say that Chairman Glenn has
been before my committee more times than I can recall on a wide
variety of subjects, to advise us on what his committee is doing.
Not only that, we have a close informal relationship, not only be-
tween him and me but between our staffs, and that is a point that
is extremely important. We observe that close communication and
cooperation in every instance. Not only that, but members of his
committee have testified before our committee, and likewise I have
been before theirs.
Mr. Allard. Could this function as a joint committee between
the House and the Senate?
Mr. CoNYERS. As a joint committee?
Mr. Allard. Could you work together on your oversight func-
tions on the administrative agencies?
Mr. CoNYERS. Well, I had never thought of that before. May I say
that that's the first time that idea has ever reached my ears in my
whole life? I had never even imagined it.
[Laughter.]
Mr. CoNYERS. The reason, among others, is that with the sched-
ule of Senator Glenn and the members of his committee, I don't
know how we would be able to meet. If you look at the Congres-
sional calendar at the number of meetings that are being held in
Governmental Affairs and Government Operations Committees, if
you ever think we could operate jointly, I think that would be
highly unlikely.
Mr. Allard. If we could reduce the number of committees, there
is a possibility that that could come forward. But it's just a thought
that I had.
Mr. CoNYERS. Well, look. Thoughts are perfectly welcome, even
in the Congress
[Laughter.]
Mr. CoNYERS. — and we can't ignore any of them. I'll keep that in
mind.
[Laughter.]
Mr. Allard. Thank you very much, Mr. Chairman.
Mr. CoNYERS. My pleasure talking to you.
Chairman Hamilton. It doesn't sound to me like you're going to
keep it in mind very long.
[Laughter.]
58
Chairman Hamilton. Ms. Dunn?
Ms. Dunn. Thank you, Mr. Chairman.
Mr. Conyers, I sat on a meeting a couple of months ago of the
Accounts Subcommittee of House Administration, and we were re-
viewing budgets of committees. I noticed when the Government Op-
erations budget came through that the staffing was really very dis-
proportionate. At that time it was 54 Democrats to 4 Republicans
on staff in that committee. It resulted in my putting together some
ideas to cut back committee staff or to equalize committee staff at
a ratio of 2 Democrats to 1 Republican.
I am wondering, Government Operations is just about the only
link that I have seen in my short time in Congress where you're
really doing some important review work of the Executive Branch
by the Legislative Branch. I'm wondering, in this time when we
have a Democratic Congress and a Democratic Administration, if it
isn't time for us to look at the possibility of equalizing that com-
mittee, staff-wise and member-wise. What are your thoughts on
making that a bipartisan committee with equal representation?
Mr. Conyers. Well, I am used to that question because it comes
up frequently. Those numbers aren't quite accurate, but there is a
large disproportion between the Republican and Democratic staff,
larger than is normal in the committees.
First of all, that is traditional. It is not something that occurred
under my watch; as a matter of fact, we haven't changed it much.
But the reasons for that are built into the relationship of the chair-
man and the ranking minority member down through the ages.
Former Member Frank Horton of New York was the ranking Re-
publican member, and, of course, for decades Jack Brooks was the
Chairman of Government Operations. They worked in such close
harmony and such a close relationship that there was never any
question about the disproportionality. Frequently, many of the in-
vestigations have no partisanship. Fraud, waste, and abuse is not a
Democratic issue nor a Republican issue. For that reason, the com-
mittees worked exactly in harmony. Although the issue was raised
in the Administration Committee when we came before you, and it
is raised by persons like yourself who have a responsibility to ask
"how come," the simplest answer I can give on my watch, what-
ever the numbers may be, is that — and I have assured everybody in
the Congress, and I make this statement one more time — no Repub-
lican on the Government Operations Committee, and particularly
the ranking member, Mr. Bill dinger of Pennsylvania, with whom
I have worked for many years, has ever been denied staffing, re-
sources, equipment, travel, or approval of hearing requests from
this Member. Not a one.
What happens is that the investigation of these matters fre-
quently starts off with a little letter, then it builds up, and pretty
soon you're dealing with a lot of trails, paper and otherwise, so the
people who started work on them keep working on them, Ms.
Dunn. The fact that they are Democratic staff or Republican staff
doesn't matter. Each time the ranking member comes before your
committee and says, "Well, you know, I haven't asked the Chair-
man for any more members, and that may be why he hasn't given
us any more," that's the way we work. It's a beautifully coordinat-
ed committee and a perfect example of how bipartisanship can
59
work on a committee that deals with a nonpartisan subject like the
ones that are under our jurisdiction.
Ms. Dunn. Then with the bipartisanship you would have no ob-
jections to equalizing the number of staff and members between
the minority and majority on Government Operations?
Mr. CoNYERS. You know, if you were a member of Government
Operations and raised that subject, we would be happy to take it
up. But guess what? Nobody on the committee sees any need to
change the circumstance that exists.
Chairman Hamilton. John, we've got a lot of questions for you,
and we don't want to keep Senator Glenn waiting. I think we
should probably move on.
I want to thank you very much for your appearance and your
leadership in the Committee on Government Operations. I think
you set a good example of oversight for all of us in the other com-
mittees. We very much appreciate your testimony this morning.
Mr. CoNYERS. Thank you very much. Anything that comes in
writing, I would be happy to respond to.
Chairman Hamilton. I think we very well might be in touch
with you as we proceed along with the course of our work here,
and we thank you for your cooperation.
Mr. CoNYERS. Thank you, Mr. Chairman. Thank you, members of
the committee.
Chairman Hamilton. We would like to welcome as our next wit-
ness Senator John Glenn, who was first elected to the United
States Senate in 1974. In addition to his position as Chairman of
the Committee on Governmental Affairs, he serves on the Armed
Services Committee, the Special Committee on Aging, and Select
Committee on Intelligence.
John, we are delighted to have you with us this morning. I apolo-
gize for making you wait for a few minutes. We look forward to
your testimony, and you may proceed.
STATEMENT OF HON. JOHN GLENN, A UNITED STATES SENATOR
FROM THE STATE OF OHIO
Senator Glenn. Thank you very much.
Let me just back up what Chairman Conyers was saying a
moment ago about cooperation back and forth. We do cover a
whole variety of things. We have a little more of a variety in Gov-
ernmental Affairs over in the Senate than he perhaps does on Gov-
ernment Operations in that some years ago, in an effort to stream-
line some things over in the Senate, they did away with the Postal
Committee and the D.C. Committee and then termed the full com-
mittee Governmental Affairs. This happened well before I was on
the committee. So we have slightly different responsibilities, but
we do work together closely on these things.
I will skip through a lot of this to leave time for discussion, Mr.
Chairman, if that's all right with you.
Chairman Hamilton. Your statement will be entered into the
record in full.
Senator Glenn. Good. We do have a longer statement than the
one I have here, and I would appreciate it being entered in the
record. Thank you very much.
60
Let me say that I don't envy you the task that you've taken on,
but I think this task is long overdue. I think we have many things
that need to be corrected around here to get the confidence of the
people of this country, and that is absolutely critical. It means that
the Nation's interest must come before special interests or our own
individual, personal interests.
We have an obligation, one that this committee is admirably ful-
filling, to ensure that a more effective and accountable Congress
can strengthen — instead of undermine — our representative democ-
racy.
The two themes I would like to address for a couple of minutes
are about the committee system and the role that it plays in effec-
tive governance.
We need to reform our committee structure in order to revitalize
the legislative process. I will talk a little bit about the management
oversight for which committees are responsible.
Effectiveness of Government is a thing that affects everybody in
this country, every single life in this country and every business.
To make more effective our committee system, I think the Joint
Committee must ask the hard questions about how we can create
and enforce jurisdictional lines that make sense to people out of
Government, not only those of us serving here in Washington.
What should be the function of the committees? How do they work
so that we prevent another HUD scandal, FEMA disaster, and so
on? Can we set goals? Can we measure performance of our commit-
tees, as we now are seeking to do in the Executive Branch, through
the performance review that the Vice President is taking on?
I hope we don't wind up with just another exercise in "boxology"
or rearranging deck chairs on the Titanic, as has resulted from
some of the past efforts at reorganization.
The number of committees — I think we have to look at that a
little bit. I'd like to offer some specifics in this area, with the idea
of getting better results.
Committee structure and assignments — I think that besides re-
ducing redundancy and streamlining jurisdictions, trimming the
number of committees and subcommittees will also ease the burden
on Members who must serve on an excessive number of commit-
tees. We are all hit with that. I am overscheduled this morning by
about three committees that I haven't even been able to go to, even
though I have responsibilities to the people I represent and to the
country to be there and participate in those functions. We are all
faced with that kind of a thing on a daily basis.
I think there is a way that we can get past some of these things.
I would like to see us reorganize, and this would be a very major
restructuring, but I think sometime we have to get to restructuring
our Government along functional lines. Now, how would we do
that? Well, this would be a general upheaval, and I understand
that, but I think five or possibly six major committees could take
in most of the functions of Government. For instance, what if we
had a Department of Human Resources, that took in all of those
functions; a Department of Natural Resources; a Department of
National Defense; another one of Economic Affairs; of Internation-
al Relations; and perhaps a sixth on Rules and Administration?
61
Now, I know it's a big job to reorganize the Executive Branch of
the Government along that Une, even though I might prefer to see
that, but perhaps we could reorganize our committee structure
along those lines. This would encompass a number of things. It
would also mean sort of a senior level "executive group," if you
will, which could almost be formed as a cabinet for leadership here
in the House or in the Senate. I think that's the way you would
organize a business. If you are starting out to organize a business,
it has to be organized along functional lines. And our committee
and subcommittee structure here has just sort of grown and ex-
panded through the years.
I am not an expert on the House subcommittee structure, but
over in the Senate it's become almost a custom that you try to
have a subcommittee for each new Senator coming in. We don't
quite meet that, but we don't miss it very far, and almost every
member of the Senate has a subcommittee of one kind or another,
even new Members sometimes. That shouldn't be necessary.
I think if we organize more along functional lines, as I have sug-
gested here, which I would hope the Executive Branch would also
follow, that would be a much better way to do our work.
Chairman Hamilton. I'm going to interrupt you here.
Senator Glenn. Sure.
Chairman Hamilton. The reason the members are leaving is not
because they don't want to hear you, it's because we have a vote
pending in the House. We'll be back momentarily and take it up
from there.
Senator Glenn. You go ahead and break and I'll just wait until
somebody comes back. That's fine.
Chairman Hamilton. It will be very brief.
[Recess.]
Chairman Hamilton. I will call the committee back to order and
recognize Senator Glenn so that he can complete his statement. We
thank him for his indulgence, but we had to go and cast some votes
on the House side.
Senator Glenn?
Senator Glenn. I certainly understand. We've had problems
when we're on votes over on the Senate side, also.
The next area I wanted to bring up, Mr. Chairman, is the Ethics
Committee. I know we have different arrangements in the House
and the Senate, but over on the Senate side, I think after consider-
able reflection about the approach used by the Senate to discipline
its Members, I would recommend the Senate create an ethics
panel — and perhaps one for the whole Congress — that is outside,
composed of former Senators or House Members, or perhaps retired
members of the Federal judiciary, and members of the general
public, also. In my view the Ethics Committee, as currently consti-
tuted— at least in the Senate — is unable to obtain the confidence of
the Senate or the American public that its proceedings are fair or
unpoliticized, and I think I speak for many Members when I say
that we were not elected, either in the Senate or the House, to sit
and serve as judges and juries of each other. I think it would not
only be fairer to Members but it would make sure these matters
are dealt with properly if we had an independent group from out-
side.
62
On committee rotations, as the chairman of one full committee,
the Senate Governmental Affairs Committee, and one subcommit-
tee, which is the Subcommittee on Military Readiness and Defense
Infrastructure of the Armed Services Committee, I have thought
long and hard about the advisability of rotating memberships of
committees. I currently serve on the Intelligence Committee where
there is a term for members, and you have to move off of that com-
mittee after a set number of years. I believe there is merit in
adopting terms for certain committees, among these the Intelli-
gence Committee, and perhaps the Budget and Appropriations
Committees also. I know you don't have quite the same seniority
rules or customs in the House that we have in the Senate, but I
think that perhaps seniority rules are carried too far in the Senate.
That should not be the only way that committee chairmen, for in-
stance, are selected. I think it's important to assure the institution-
al memory, and certainly seniority has its place, but I don't think
that should be the only criteria where there is other expertise and
knowledge that could be brought to bear if those people were con-
sidered as chairmen.
On another subject, on budget authorizations and appropriations
committees, I think we've gone overboard on our committee struc-
ture. I don't know how we get out of this quagmire we're in, but
there are many possibilities for committee consolidation and
streamlining that I think we could get into. We have an authoriz-
ing process, an appropriating process; we now have a budgeting
process over all of them, and at least in the Senate I think there
are many, many examples of where we have voted on particular
issues at subcommittee, then at full committee in the authorizing
process; the same thing comes up at subcommittee and full commit-
tee in the appropriating process, and people won't give up. We see
them out on the floor again during the processes out on the floor,
and then we run through the whole thing again in the budgeting
process in the spring and in the fall before they are locked in,
where we were supposed to be setting general goals, but then too
often these things become the — we now have a lot of these same
individual things that were suggested in committee that are now
suggested out on the floor in the budgeting process, even in the
spring budgeting process that we go through. So I think there is a
lot of streamlining that could be done there.
I do not know, Mr. Chairman, whether we combine the budgeting
and the authorizing functions, and do away with authorizing com-
mittees; or do we combine authorizing and appropriations commit-
tees? But I know that there is so much overlap now among the
budgeting process, the authorizing process, and the appropriations
process, that it literally becomes legislative WPA. We're just
making work for ourselves, and unnecessarily. I'm not trying to
shortcut anybody's ability to bring up a matter and have it fairly
heard, but this thing that we go through now, of hearing the same
things in authorizing and appropriating committees and in the
budgeting process, all overlapping, and voting several times a year
on the same issue, just doesn't make much sense to me. I think we
should be looking at ways to combine those functions.
63
Staff told me that a vote has just begun over on our side on the
Sasser amendment, so I, too, am going to have to run before too
long and get my vote in.
Chairman Hamilton. Senator, I did get the same note here, and
I was going to make sure you didn't miss that vote.
Senator Glenn. Thank you, good. They'll let me know when
we're down to about five minutes here, and then I'll run.
I think we all could do a much better job on oversight than we
do. I would like to suggest that we go to a biennial budgeting proce-
dure. I think we definitely should do that. We've done that on the
Armed Services Committee of which I am a member, but because
all other committees are not on that basis, it doesn't necessarily
work that well.
I see no reason why we can't do it on a biennial basis and use the
off-year when we're not doing specific budget matters for oversight,
and do a far better job of oversight in that off-year. Now, whether
it should come in the year of election, or the odd year, which this
year is, in between elections, I don't know. There are arguments in
both directions. But I really do think we should go to biennial
budgeting and do a much better job of oversight which, it seems to
me, too often gets short shrift. We do a lot of that in our Govern-
mental Affairs Committee, obviously, because one of our functions
is to look at the efficiencies of Government and the organizational
aspects of Government.
But we have so many things that do not get looked at in the way
of larger management considerations that mean the success or fail-
ure of programs: issues of waste, fraud, and abuse; financial man-
agement improvements. We put through the IG Act and the Chief
Financial Officer Act. Too often I think we're one of the few com-
mittees that really looks at those things and gets into what's really
going on in each department. There are some very promising
things going on with those two entities.
We should be looking more at outcomes instead of just the
inputs. This performance review that the Vice President has going,
I think we should be doing that as a matter of course here. It
should be our requirement for every committee to do that kind of a
review going into these programs, not always just coming out of
them.
Another issue is academic research. We asked the Congressional
Research Service a short time ago to total up what funds we had in
all the budget for academic research and development, almost
without exception earmarked funds, and we all know what that
means. It turns out there is $700 million that they came up with.
Now, I think that ought to be brought out and put under a sepa-
rate function in the budget. I think most of those funds should be
determined by competitive considerations, anyway, so that these
are not just the traditional pork that everybody gets in under some
specific little ruling of some kind or some language that they know
what it means, and the money is there, but which isn't apparent to
everybody else. We just have stuff hidden all over the budget like
that. Trying to ferret these things out is like trying to find a four-
leaf clover on a football field. It's just very difficult to do, and I
think we ought to pull all those things out.
64
On nominations, I have been long concerned about the qualifica-
tions of political appointees. The political appointees in Govern-
ment, Mr. Chairman — I had a little study done by GAO; they
looked into it. Do you know that 31 percent of our political appoint-
ees leave their jobs within 18 months? And half of our political ap-
pointees are gone within 27 months? Now, how do you expect to
run a Government with that kind of a turnover, churning, going on
over in the Executive Branch of Government? It's impossible.
So what I ask each one of the people that I have up for confirma-
tion before my committee — and we have quite a number we're re-
sponsible for — I get out of them a commitment that, yes, they will
serve through this term; at the pleasure of the President, of course,
but they will serve through the term and didn't come in just to get
their dossier filled out a little bit and get their ticket punched for
another job someplace that they're heading for.
Chairman Hamilton. Does it work?
Senator Glenn. Yes. Without exception, I've had people say that
they will agree. Now, that isn't binding on them, obviously, just my
getting their verbal agreement, but I think it indicates that there
is a problem there. So I think we ought to look at that a little bit.
Rules and procedures — I think we can also do a lot in that area. I
think there have been some abuses in that particular area.
Mr. Chairman, I am going to have to run and vote. We all have a
problem today. I submit my longer statement.
Let me say on the budgeting, that our colleague was talking
about a little while ago, over on the Senate side we have a 2/3-1/3
majority-minority, and they have 2/3-1/3 on the money. The ma-
jority has 2/3 on most committees over there; that's what I have on
Governmental Affairs, and 1/3 of the money goes to the minority.
They can hire 50 people at cheap wage rates or they can hire 2
people at high wage rates. It's up to them how they want to spend
that amount of money. We have a break of 8 to 5, Democrat to Re-
publican, on our particular committee.
So, Mr. Chairman, I appreciate this. I'm sorry I have to rush off.
[The prepared statement of Senator Glenn is printed in the Ap-
pendix.]
Chairman Hamilton. Well, we fully understand that, of course.
Thank you very much. We will review your written testimony. You
have been helpful to us. I wanted to go into this functional line re-
organization; maybe I'll have a chance to explore that with you at
another time.
Senator Glenn. Well, maybe I could run back down later.
Chairman Hamilton. I think we have two of your colleagues
coming in just momentarily. But we will be in touch with you,
John, about these matters.
Senator Glenn. If we could go to a functional organization in the
Government, or at least the Congress
Chairman Hamilton. Would it pass the Senate?
Senator Glenn. I don't know whether it would pass the Senate
or not. I'd sure try to get it passed, because I think we're due for
major surgery in this organizational area. I hope you people get
into that. I hope you get the big axe, not just the scalpel. I think
we need real reorganization.
Thank you.
65
Chairman Hamilton. Thank you, John.
We will stand in recess until the other witnesses are available.
[Recess.]
Chairman Hamilton. The committee will resume its sitting.
For the final panel today we have the Chairman and the ranking
member of the Subcommittee on Oversight of Government Manage-
ment, Senators Carl Levin and William Cohen. Senator Levin is
not here yet, but we are very pleased to welcome Senator Cohen.
He is a member of this Joint Committee. He has testified during
our hearings before with respect to committee structure. He first
came to Capitol Hill as a Member of the House in 1972, and was
elected to the United States Senate in 1978. He is currently the
ranking member of the Special Committee on Aging and serves on
the Armed Services Committee and the Judiciary Committee.
Bill, we thank you very much for joining us today. As I think
you know, we are focusing on the general question of oversight. I
know you and Carl spent a lot of time on that, so you may proceed,
sir.
STATEMENT OF HON. WILLIAM S. COHEN, A UNITED STATES
SENATOR FROM THE STATE OF MAINE
Senator Cohen. Thank you, Mr. Chairman. Hopefully Senator
Levin will be able to join us and give a full statement.
I do have a prepared statement that I would submit for the
record, and perhaps just touch on the highlights of it.
Chairman Hamilton. Without objection, that will be made a part
of the record.
Senator Cohen. I think all of us who serve on the Joint Commit-
tee are aware of the low esteem in which our institutions are held.
There was a recent poll that indicated that 98 percent of the Amer-
ican people feel that Federal agencies are spending money without
any regard to the efficiency of the various programs. That's a
pretty extraordinary figure. We also know historically that Con-
gress has not enjoyed a very high level of esteem in the eyes of the
American people, and perhaps no group of people — with the possi-
ble exception of lawyers — have enjoyed more honor and more oblo-
quy than politicians. But we all face the same irony, I guess, and
that is that people tend to denounce lawyers as a group, but love
their particular lawyer. The same happens to be true with their in-
dividual political figures, for the most part.
But I think this 98 percent figure is a truly extraordinary one.
That represents the level of discontent — and dismay, I suspect — on
the part of the American people, who feel that their dollars are
simply being wasted. And they see evidence of this almost on a
daily basis, unneeded and unwanted Federal buildings. We've had
a good deal of publicity on the fact that GSA has not been engaged
in real property management techniques for some time now, that
we are building an extraordinary number of expensive buildings in
cities in which there are commercial vacancy rates from 18 to 22
percent and even higher in the commercial sector. We are purchas-
ing none of those buildings from either FDIC or the Resolution
Trust Corporation.
66
We see examples of Federal warehouses filled with billions of
dollars of unneeded goods, and we find we have Federal contractors
who are charging $0.60 for making Xerox copies.
All of those stories — in fact, the reality of those stories — indicate
that there is a confirmation of the deep level of cynicism that
exists in the country today.
Congress historically has had the power to exercise oversight. It
goes back to the very founding of the institution, certainly. We
have the power, for example, to organize the Executive Branch. We
have the power to confirm and to impeach, and we ultimately have
the power of the purse. As I think our founding fathers said best,
someone has to be entrusted with power, but no one can be trusted
with power. For that reason they called upon each Branch to over-
see the others, to be doubly sure that we are abiding by the rule of
law.
In 1946 you had the first confirmation of that oversight power in
the Reorganization Act of that year, but since that time
Chairman Hamilton. Carl, we are glad to have you join us.
Senator Cohen. — we have seen the oversight activities and re-
sponsibilities substantially weakened due to the growth of the Fed-
eral bureaucracy, due to the vested interests in the authorizing
committees — and I'll speak about this in a moment — and third, to
the pressure on all of us to deliver for our constituents once those
committees set up and fund the various programs. I give you one
example of the level of bureaucracy that has been spreading.
In 1932, in the Department of Agriculture, there were 22,000 em-
ployees. It had a budget of $280 million, and served 6.7 million
farmers.
In 1993, we have 113,000 employees. We have a $66 billion
budget, and we serve 2.1 million farmers.
Has oversight been simplified or expedited? The answer is no. At
one time you could pick up the phone and call the head of that
agency and get a response. Today you submit a request to the Con-
gressional Relations Office, and then it goes through a vast laby-
rinth of the Federal bureaucracy.
Any of you who have had occasion to pass through Logan Airport
in Boston will see a Rube Goldberg contraption where you drop a
ball down a chute which sets off a series of motions throughout this
huge display. It finally ends up down at the end of that particular
device, several minutes later. Everyone is fascinated with how ev-
erything trips another lever and another particular motion, and
every time I pass through the airport it reminds me that that's
pretty much how the bureaucracy in this city functions.
We also know that what is taking place and what is cutting
down on true oversight is the old stall. I think time is the ally of
the bureaucracy, and it's also the enemy of Congress. You and I
and Senator Levin and Congressman Allard have all sat on com-
mittees, and we know that we are pressured by the conflicts in our
schedules. We are overburdened with various committee assign-
ments. We submit letters. We hold hearings, and then time will
simply pass. There will be a delay in the response, and all those on
the delaying end know that we have a very short attention span.
There are so many demands upon our time that it will be rare if
67
we can get back to it, and when we do it may be the next session,
and then we start the process all over again.
There is another aspect to it that all of us who serve on authoriz-
ing committees feel that we have to elevate various agencies to cab-
inet-level status. That signifies the importance of the particular
agency that we might have jurisdiction over, but once you elevate
it to cabinet status, then that signifies even greater power of your
chairmanship or ranking position; you now have jurisdiction over a
much more important agency.
The third point that I mentioned earlier was the special interest
lobbying. Once a program has been created, it is virtually impossi-
ble to cut it back. The pressure is on to expand it to satisfy that
particular group. If you take the combination of factors, I think
you can see why we have such a vast Federal bureaucracy and why
it's so difficult to do much about it.
I have been one to recommend that we combine the authorizing
committees with the appropriating committees. I think if we're
going to simplify, we ought to really strike at the heart of our prob-
lem. We simply have a layered process which contributes to exces-
sive delay and inaction, and I would recommend that we combine
both appropriating and authorizing committees, and that we have
an outside committee that would oversee the various committees
that are set up for fraud and waste.
I will close very quickly because my Chairman of the Subcommit-
tee on Oversight of Government Affairs is here and I want to give
him an opportunity to speak to you more directly.
We have served on the Subcommittee on Oversight since 1979. I
think we have made some remarkable reforms that have produced
substantial savings through that oversight process. The first one
that I can recall is the Competition in Contracting Act, which I
think has saved billions of dollars for the Federal Government by
insisting on competition. That came about as a result of our efforts
in oversight. We have held hearings dealing with clinical laborato-
ries, finding that we have a system where we not only save money,
but we save lives through the adoption of the so-called CLIA, the
Clinical Laboratories Improvement Act.
Another example of fraud and waste came about through the
hearings on the Aging Committee on which I serve as ranking
member, the so-called durable medical equipment suppliers, where
we have some fly-by-night operations who set up their sort of boiler
rooms and hire teenagers to then advise every senior citizen in
that region of the kind of things that they are entitled to. They end
up selling a bill of goods, such as a so-called flotation mattress,
which costs about $23, a piece of foam — they paid about $23 for it
and got reimbursement through Medicare and Medicaid of $1,100.
So we have been very vigorous in our oversight process. We have
saved money and lives through it. I would recommend that we sim-
plify our system by combining authorizing and appropriating com-
mittees and keep a very vigorous oversight process outside of that
committee's jurisdiction. So that puts everybody on notice that we
are not simply going to be feeding those committees' interests by
promoting more and more spending, but rather having very vigor-
ous oversight.
68
I will stop here, Mr. Chairman, and yield to my friend from
Michigan.
[The prepared statement of Senator Cohen is printed in the Ap-
pendix.]
Chairman Hamilton. Could you get through the Senate a propos-
al to combine the authorizing and appropriating committees?
Senator Cohen. Well, we would have to take that up with Sena-
tor Byrd. I'm sure that he might have some objections. I'm quite
willing to merge the authorizing committees and put them as part
of the appropriating committees. I think it should be the other way
around, but practical realities would probably dictate an inversion
of that proposal. But I think we have to combine them. I think we
ought to have a two-step process rather than the three-step process
that we have right now.
Chairman Hamilton. We are very pleased to have Senator Carl
Levin joining us. He was first elected to the United States Senate
in 1978. He serves on the Armed Services Committee and the Small
Business Committee.
Carl, we are pleased to see you. Thank you for coming down to
join us this afternoon. You may proceed to your testimony. It was
just handed to me; that will be entered into the record in full, of
course.
STATEMENT OF HON. CARL LEVIN, A UNITED STATES SENATOR
FROM THE STATE OF MICHIGAN
Senator Levin. Thank you. Thanks for the invitation. Being here
with Senator Cohen is a double pleasure. He and I have been
Chairman and ranking member of our little subcommittee of Gov-
ernmental Affairs since it was created in 1979, when Senator Ribi-
coff created it.
I came to the Senate determined to spend some significant time
on overseeing Federal programs, and this came out of my frustra-
tion as a local official, president of the City Council in Detroit, with
the way in which Federal programs were managed. I saw program
after program, well-intended, with a goal that I shared, being un-
dermined by waste, fraud, abuse, and arrogance in the way in
which they were administered. It was very frustrating to me as a
local official to see programs that I believed in — indeed, that I had
supported and fought for — being wasted so that they did not accom-
plish the purpose which was so vital to them.
So when I came to Washington, I was determined to participate
in the oversight process. I asked Senator Ribicoff at that time
whether or not he might create this subcommittee; in fact he did
create the subcommittee, and as I've indicated, I've had the pleas-
ure of working with Senator Cohen as Chairman and ranking
member since 1979.
Just to flesh out some of the oversight issues that we've been in-
volved in a bit. Senator Cohen mentioned a few, but I think a few
others would be familiar to you as well.
The Social Security disability fiasco, when we had hundreds of
thousands of people being removed wrongfully from Social Security
disability rolls — our subcommittee was the one that got into that
issue in the Senate. The IRS abuses — we had hearings on those
69
abuses, small businesspeople being put out of business needlessly
by IRS arrogance. That led to a Bill of Rights for taxpayers. DOD
supply system excesses — this has been rampant. I think we are all
familiar with some of those, Allen wrench and toilet seat issues. In
the Senate, that came through our subcommittee. We were the
ones who brought those to light on the Senate side, and a whole
host of other issues which we have been able, with a very small
staff, a marvelous staff, to unearth and to make progress on and to
save billions on. We saved literally billions last year on the DOD
supply system, which had excess supplies in warehouses that were
bulging.
I have just a few specific suggestions as to how you might be able
to give some greater or additional support to the oversight process
and to highlight the importance of Congressional oversight and to
retain a structure for the conduct of meaningful oversight.
First, I think we ignore a lot of the oversight that we now do. We
produce oversight in some quantity; not enough, in my book. I
think Congress should pay much more attention to oversight than
it does. One of the ways in which it could do that is if we all had
more time for that and if the committee system were streamlined.
But putting that aside just for a moment, we do oversight, but
often ignore our own oversight and what it produces.
Let me just give you one example of that. The Senate Banking
Committee in its own analysis of the causes of the HUD scandal
involving Section 8 housing — this is its own analysis — said that
"Congress did not pay attention to a number of reports which high-
lighted ongoing problems at HUD, especially the IG semiannual re-
ports." So not only our own oversight, but we have GAO oversight
and we have IG oversight already in existence that we do not take
advantage of.
This, by the way, is a GAO book with which you may be familiar,
called "Status of Open Recommendations." This is the open recom-
mendations of the GAO, the ones that have not been acted upon.
Now, how can we take greater advantage of the oversight which
is being done, whether it's our committee oversight or the GAO
oversight or the IG oversight? Let me give two specific suggestions.
One is that our committees of jurisdiction be required each year
to hold a hearing on the prior year's reports by the relevant IGs
and by the GAO within their committee's jurisdiction. It would
force us individually and personally as Members to become famil-
iar with the specific recommendations of the IGs and the GAO in
the area of our committee jurisdiction. It's an action-forcing mecha-
nism, in essence. There is a lot of material that we do not personal-
ly become connected with because it's not the subject of a hearing.
Hopefully our staff looks at these reports, but this would force us
to give more attention to it, if our committees were mandated to
hold a hearing each year on the prior year's recommendations of
the IGs and the GAO in their area of jurisdiction.
Secondly, I think we should require as part of the budget process
that agencies over which our committees have jurisdiction report
to us annually on what actions they have taken or haven't taken in
response to the outstanding IG and GAO recommendations.
So as part of each year's budget process we would tell the
agency, "When you come in here defending your budget, as part of
70
that presentation we want to know annually what actions you have
taken or what actions you have decided not to take that have been
recommended by your own Inspector General and by the General
Accountmg Office within your area." That's a second way to kind
of take fuller advantage of the recommendations for savings in the
way in which these programs are operated.
Thirdly, in our oversight process I think we can try to find ways
to apply the principles that we are establishing in one program to
other, similar programs. Let me just give you one example.
We have asked the GAO to analyze an existing loan guarantee
program to see if they can isolate elements which would be essen-
tial, useful, in other loan guarantee programs in order to protect
the Government's interest. It's a way of kind of taking the lessons
learned in one area and trying to see if we can't find ways to make
them available in similar areas where other committees might
have jurisdiction, but we don't do a lot of that. It's a bit vague,
hard to get a handle on, but it would be very useful if we were able
to identify and isolate and draw out principles in a specific in-
stance which might be used in the programs of other committees.
I don't know whether I have overshot my time or not. I have a
couple other specific suggestions, but I don't want to go over if I've
already done so.
Chairman Hamilton. Go right ahead.
Senator Levin. Sunset legislation — I was strong supporter when I
came here. We actually got it out of our Governmental Affairs
Committee, but the bill died on the Senate floor. Looking back, it
probably should have; it was too broad. We can't practically sunset
every program because we're going to sink ourselves in paperwork,
but we could identify programs which should be sunsetted. We
should sunset more programs.
We could have what I would now call "limited sunset," to try to
identify those programs which involve the most money or which
are the of the most dubious cost-benefit value, and write in sunset
provisions in the legislation. We do that in a number of bills over
which we have jurisdiction, including the ethics laws and independ-
ent counsel — Senator Cohen and I have just gone through that
markup at our committee. We reauthorized independent counsel;
and by the way, I think we made significant improvements in the
independent counsel reauthorization bill. Senator Cohen is a strong
defender of independent counsel, but each time we reauthorize it
we think we've improved it. And there are some legitimate com-
plaints about independent counsel which can be addressed, about
maintaining the principle of independent counsel. Literally, just an
hour ago we were in a markup, discussing a whole host of changes
that we're proposing in our bill, in the independent counsel law,
and the reason that we were addressing it, literally, is that the in-
dependent counsel law expired. It was sunsetted. It had a five-year
authorization and ran out. If it had a permanent authorization, we
wouldn't have taken the time, which Senator Cohen very properly
points out is the thing that is in shortest supply, taking the time to
address how something is working.
I think I am going to stop there. I have a few other suggestions,
but they are in my statement and you've included them in the
record. Perhaps this will leave more time for questions.
71
Chairman Hamilton. We just had a vote in the House, so we will
have to conclude fairly quickly. I apologize for that, but we'll not
try to keep you beyond that.
Wayne, do you have some questions?
Mr. Allard. Yes, I have one question.
We've heard Representatives here from the House, from the
Committee on Government Operations, and now we have Senators
here from that body on Government Ops. Isn't that a duplication of
effort between the two Houses as far as agency oversight? Do you
work to try to avoid any duplication of effort between the two com-
mittees?
Senator Levin. There is a significant effort to avoid duplication
between those two committees. I think having one cross-agency
oversight committee in each House is essential; in other words, one
committee that looks at all agencies so that we avoid the so-called
"iron triangle" problem, which I won't describe, but it can come
about when we're too close to those we are trying to regulate and
oversee. So if you have one committee in each House that has
cross-agency oversight jurisdiction, I believe that is essential. We
do that in the Government Ops Committee in the Senate, and I
think we avoid — may be corrected on this; there may be examples
where there has been duplication — but our staffs particularly, and
we as Members, work quite closely to avoid duplicating. We use
their reports, and I think they use our reports, as well.
Senator Cohen. Could I ask a question?
Senator Levin. Go ahead.
Senator Cohen. Chairman Hamilton asked if I had taken my rec-
ommendation up with Senator Byrd, and I would ask whether you
have taken up your question with Congressman Dingell.
Mr. Allard. The question of appropriations?
[Laughter.]
Senator Cohen. No, but as you know, he has very expansive
oversight in his own committee, and there is always some competi-
tion between Government Operations and his particular commit-
tee, which is quite active.
Mr. Allard. Well, there is that concern in the House when you
consolidate committees as to whether you are concentrating too
much power or not. I think it's something that needs to be consid-
ered, but on the other hand we do have an awful lot of committees
and we have an awful lot of staff that goes with those committees.
Senator Levin. You were talking about duplication between a
Senate committee and a House committee?
Mr. Allard. Yes.
Senator Levin. Not between two inside of each House.
Mr. Allard. Yes.
Senator Levin. Assuming you could have one Committee on Gov-
ernment Operations — Government Affairs, Government Oper-
ations— have one oversight committee, it seems to me you have to
take this up with some of the other people in the House as to
whether they are yielding what they consider to be their legitimate
oversight.
Mr. Allard. Their prerogative as a separate body.
Senator Levin. Right.
72
Mr Allard. Yes. Well, it's just some thinking that we've
brought out on this committee. I personally brought that out be-
cause 1 thmk that perhaps in the nonpartisan area there is plenty
of opportunity to do that, and we haven't looked at that hard
enough This is a little more political, a little more tough for one to
crack. Personally, I would like to see us tackle that on the nonleg-
islative, nonpartisan area and get that in order before we go ahead
and begin to address some of these. But since you're here and testi-
tying tor both Houses, I thought it would be an opportunity to
bring that issue up. ^
I appreciate both of your comments. I want to thank the Chair-
man.
• 9u^^S^^o Hamilton. Do you both have quite a bit of confidence
m the CjAO.''
Senator Cohen. I do.
Chairman Hamilton. How do you determine your priorities in
oversight? Do you rely heavily on GAO? You've got this vast area
to exercise oversight on. How do you determine
Senator Levin. They are one of the sources.
Chairman Hamilton. One of the major sources?
Senator Levin. They are a major source. But we also look at
problems as they come up from various sources. It can be literally
trom constituents, personal experience, on the floor, newspaper ar-
ticles, TV. It s not a very well organized thing, and maybe we
ought to do a better job of organizing our oversight in advance so
It s not so scatter-shot. There is some argument that it should be
more organized in advance. But they are one of the sources.
Senator Cohen. Let me add one footnote. In recent years there
has been some controversy over the use of the GAO by individual
committees, that it has become politicized in some instances There
^^!i^ ^^^^^^^ ^^ ^^^ Senate and an attempt, perhaps, to cut back
on the GAO itself.
So we rely on the GAO, and ordinarily they do a very outstand-
ing job. But nonetheless, some Members do call upon it and have a
personal-type agenda.
Chairman Hamilton. Well, I think the two of you have done a
remarkable job for the Senate and for the Congress in terms of
oversight and emphasizing the importance of it. You deserve great
credit for that. We probably need in this Joint Committee to learn
a great deal from you in trying to spread the manner in which you
operate more widely in the Congress.
I gather both of you think that we, as an institution, don't do all
that good a job on oversight? That's your impression?
Senator Levin. That is my impression.
Chairman Hamilton. Yes.
Senator Cohen. I think we spend too much time legislating and
not enough time overseeing, and as a result we find— again, you've
been a recipient of the so-called "stall" when we know we can only
hold one hearing that week, and there will be recesses coming up
and there s a time lag and then we're into the next session. That
has been the real bedeviling aspect of this.
Chairman Hamilton. Well, gentlemen, we would like to visit
with you more. I know your schedule is tight, and we have a vote
73
pending, so I think we will just have to conclude with our apprecia-
tion to you for your appearance and your recommendations.
Senator Levin. And would you please tell our Senate colleagues
just how brilliant we were?
[Laughter.]
Chairman Hamilton. I'll be happy to. They won't pay any atten-
tion to what I say, but I'll be happy to.
[Laughter.]
Senator Levin. Thanks for your work on this committee.
[The prepared statement of Senator Roth, submitted for the
record, is printed in the Appendix.]
[Whereupon, at 12:43 p.m., the committee was adjourned, to re-
convene at the call of the Chair.]
INTERBRANCH RELATIONS
TUESDAY, JUNE 29, 1993
United States Congress,
Joint Committee on the Organization of Congress,
Washington, DC.
The committee met, pursuant to call, at 1:40 p.m., in Room HC-5,
The Capitol, Hon. Eleanor Holmes Norton, presiding.
Mrs. Holmes Norton. Could I ask the next witnesses to come
forward?
The joint committee will resume its hearing.
Mr. Robert Kastenmeier, currently a Distinguished Fellow of the
Governance Institute and its project on Congressional Recommen-
dations and, for 32 years, a Member of Congress and chair of the
Subcommittee on Courts of the House Judiciary Committee. A
member of the Federal Courts Study Committee, Mr. Kastenmeier
is widely considered to be the Hill's foremost expert on the judicial
system.
Judge Patricia M. Wald. Is she here? Judge Wald currently
serves on the United States District Court for the District of Co-
lumbia, having served as chief judge of the circuit.
In a most distinguished career. Judge Wald has been, among
other responsibilities, a staff attorney of the Office of Litigation.
She has been a litigation director with the Mental Health Law
Project, a Member of the Committee on Codes of Conduct of the Ju-
dicial Conference, and Second Vice President of the American Law
Institute.
Third, we are pleased to welcome Judge Alex Kozinski, currently
United States Circuit Judge for the Ninth Circuit; formerly Assist-
ant Counsel to President Reagan; Special Counsel, Merit Systems
Protection Board; and chief judge of the U.S. Claims Court from
1982 to 1985.
Professor Robert A. Katzmann, currently President of the Gov-
ernance Institute, Walsh Professor of Government and Professor of
Law at Georgetown University and a Visiting Fellow at the Brook-
ings Institute. The Governing Institute is a nonprofit organization
concerned with exploring, explaining and easing problems associat-
ed with both the separation and the divisions of power in the
American Federal system.
I am pleased to welcome all four of our distinguished panel mem-
bers and ask you to proceed in any order you desire.
Mr. Kastenmeier?
(75)
76
STATEMENTS OF HON. ROBERT KASTENMEIER, FELLOW, GOV-
ERNANCE INSTITUTE; HON. PATRICIA M. WALD, JUDGE, UNITED
STATES DISTRICT COURT, DISTRICT OF COLUMBIA; HON. ALEX
KOZINSKI, JUDGE, UNITED STATES CIRCUIT COURT FOR THE
NINTH DISTRICT; AND ROBERT A. KATZMANN, PRESIDENT,
GOVERNANCE INSTITUTE, WALSH PROFESSOR OF GOVERN-
MENT AND PROFESSOR OF LAW, GEORGETOWN UNIVERSITY,
AND VISITING FELLOW, BROOKINGS INSTITUTE
STATEMENT OF HON. ROBERT KASTENMEIER
Mr. KASTENMEIER. Thank you, Madam Chair, members of the
committee. It is both a pleasure and an honor for me to be here
today, particularly with a panel consisting of two of the most
thoughtful and prominent members of the Federal judiciary, Feder-
al appellant judges Pat Wald and Alex Kozinski and also Professor
Bob Katzmann, a scholar of national prominence with respect to
the judiciary and the Congress with whom I work as a colleague in
the Governance Institute.
The subject of the relationship of the Congress and the Federal
judiciary is an important one. My understanding is that you have
chosen to focus on the specific of legislative history and statutory
interpretation.
There are a number of current issues that concern the two
branches. Parenthetically, I chair an agency called the National
Commission on Judicial Discipline and Removal that deals with the
important issue of impeachment, discipline and disability and
while issues of communication between the branches — issues of
funding, jurisdiction and other matters — are relevant, none is more
important that the legislative process and judicial review of legisla-
tion— certainly for the Congress.
Although I spent 32 years in the House of Representatives,
unlike my fellow panelists, I am neither an expert nor a student of
the subject. Like most who serve, I was, rather, a generalist. I did,
however, chair a judiciary subcommittee on Courts, Civil Liberties,
Intellectual Property and Administration of Justice and increasing-
ly became interested in problems affecting the Federal judiciary.
In the 1988-1989 period it was evident that a view was emerging,
primarily attributed to Justice Scalia, that congressional legislative
history was unreliable and the judiciary would do well to resort to
a "plain meaning" or textual rule for interpreting Federal statutes.
This point of view was ventilated at one or more symposia during
this period including one dealing more broadly with congressional
judicial relations arranged by Professor Katzmann. This view and
its implications were also featured in The New York Times, The
Washington Post and other papers as well as in congressional jour-
nals. Congressional Quarterly in particular. I mention this because
while the subject of legislative history has been authoritatively
written about in law review articles by Judge Wald and Judge Ko-
zinski, it had by 1990 achieved a popular political prominence, and
on April 19, 1990, I held a hearing on the subject. Two of my fellow
panelists were witnesses that day.
If I were to be surprised at all, it would be at the lack of concern
of fellow Members of Congress about the new plain meaning doc-
trine and the reasons for it.
77
It is given that legislation that becomes law is frequently, very
frequently, flawed, and the legislative process is imperfect. The
subject of legislation may well be a battleground between conflict-
mg ideologies, economic interests involving partisan considerations
sometimes pitting the House against the Senate or the Congress
against the Executive, errors arise, ambiguities go unresolved,
meaning is obscure, definitions may be missing.
Nonetheless, a judicial review policy that says your reports, collo-
quies, hearings are untrustworthy and unreliable and will not be
used to divine legislative intent is an assault on the integrity of the
legislative process that cannot in my view be condoned. As the Fed-
eral Judiciary is appropriately concerned about judicial independ-
ence, so Congress must be about the integrity of the legislative
process and challenges to it. It is akin to the court stripping initia-
tives of the 1970s intended at that time to punish the Federal Judi-
ciary for unpopular constitutional decisions of the prior decade.
It is now 1993 and I do not see a great rush on the part of the
Federal Judiciary to embrace the textualist doctrine. Rather, I see
the judiciary more interested in opening communications with the
Congress than confronting it by disdaining its work.
But tensions, perhaps serious tensions, between the iwo branches
remain, and one could envision a worst-case scenario with a long-
term war developing between Congress and the Judiciary in which
both sides fare poorly; loss of jurisdiction, loss of funding, and a ju-
diciary siding with the executive branch.
I think it more likely that we ought to light a candle rather than
curse the darkness. Professor Katzmann has brought about a
project to cause decisions dealing with troublesome statutes to be
especially conveyed to the Congress, to its leadership, to legislative
counsel and to the relevant committees. This experiment approved
as an experiment involving the D.C. Circuit is well along and we
hopefully expect the Judicial Conference will in due course encour-
age all circuits to participate. This is a small first step — others can
follow.
Finally, I would make a series of recommendations. Some are
self-evident and would be irrespective of the judicial review doc-
trine employed:
One, this project should involve the review returned decisions; to
determine whether there is a pattern.
Two, have special courses for new House and Senate members in
legislative history and statutory constructions and the legislative
process — have comparable course for new judicial officers.
Three, give legislative counsels' offices more review authority
over proposed legislation.
Four, there ought to be a mandatory legislative checklist; i.e.,
statute of limitations, federal preemptions state law intended, etc.
Do not need Judicial Impact Statement. I do not think the Con-
gress needs to pass a Judicial Impact Statement. There is already
an Office of the U.S. Courts to do that. I don't think Congress
would be disposed to do that.
Five, avoid to the extent possible massive omnibus bills and hast-
ily considered last minute before adjournment sine die legislation —
insure some review.
78
Six, have more frequent oversight hearings or sessions on legisla-
tive history. Make sure the Federal Judiciary is well represented.
Seven, check to see how "revision of laws" project is proceeding.
We went through this for many, many years. I don't know the
present state of it. But this was a project that, title by title, cured
many of the defects found in Federal statutes over the years.
Eight, I do not recommend a return to extensive legislative pre-
ambles to register legislative intent. Often we have see bills intro-
duced that state noble purposes as preambles, but often Congress
strikes those, lest we clutter the statute with nonoperative state-
ments that precede a particular bill. Only as a last resort to clarify
legislative intent would I ever recommend a return to legislative
preambles.
Nine, others have recommended that committee reports be
signed by all committee members to give the document greater au-
thenticity. That may or may not be a good idea in practice. It de-
pends whether you have them sign, that they read the report or
agree to the report. That may be somewhat difficult, but it ought to
be considered.
Ten, still others recommend expanding the canons of legislative
construction in Title 1 of the U.S. Code. I do not have a view about
this, but it ought to be explored.
Legislation is our craft, how well Congress does the job of writing
statutes is central to the integrity of the institution. In the months
and years to come, as you move toward greater congressional effec-
tiveness and strengthening congressional integrity, there is no
more compelling issue than the one before you today.
Mrs. Holmes Norton. Thank you very much.
[The statement of Mr. Kastenmeier is printed in the Appendix.]
Mrs. Holmes Norton. Judge Wald.
STATEMENT OF THE HONORABLE PATRICIA WALD
Judge Wald. Thank you. Madam Chair and committee members.
The use of legislative history by courts and by administrative
agencies that are implementing statutes is very important for two
reasons: One, to ensure that laws are enforced as they were intend-
ed to be by Congress; and two, I believe it also implicates a proper
balance between the legislative, executive and judicial branches
under our separation of powers system.
As Mr. Kastenmeier has alluded to, the history of the legislative
history is a somewhat checkered one. Our British ancestors in fact
did not utilize the legislative history of statutes as an aid. But for
over a century, American courts have looked to House and Senate
reports. Floor debates, and hearings for guidance, unless the mean-
ing of the law was clear on its face from which we get the term
"the plain meaning" principle.
But in reality, as I pointed out, in looking at all the Supreme
Court cases in 1982, up until that time, the Supreme Court would
look anyway in most cases at the legislative history, even if they
thought the meaning was clear on its face, to make sure the histo-
ry did not show something that contradicted the main meaning.
Justice Frankfurter said "The notion just because the words of a
79
statute are plain, its meaning is also plain, is merely pernicious
oversimplification . ' '
In the 1980s, a strong textualist movement emerged led by Jus-
tice Scalia. Perhaps oversimplifying the textualist movement,
except where the result would be "absurd," in the judge's mind,
that is, only the ordinary meaning of the statutory text should be
consulted and the legislative history should not.
The theory behind the textualist's view is that Congress passed
on the text of a statute, not the report, not the debate and not the
hearings. The textualist also believes that things in hearings and
reports are too easily manipulated by the staff and even by lobby-
ists and they are not even read by the Members themselves.
Textualists will permit the text of a provision or a statute to be
read in conjunction with other provisions in the same statute or
perhaps related statute to look at the overall design of a statute
and they will also allow judge — made canons, however, to be used
in interpreting the words of Congress.
I visited the Supreme Court that term to see what was happen-
ing. Incidently, at least every year, 50 percent of all Supreme Court
cases involve statutory construction and I believe that number is
probably going up. We have a statutory jurisprudence which in-
creases the emphasis given to the topic we are discussing today.
In 1989, when I looked again, I found that there were more
cases — I think about a dozen — in which laws were being interpret-
ed without regard to any legislative history at all. On the other
hand, it was clearly present in others. For instance. Justice Bren-
nan, in Public Citizen versus the Department of Justice, he used
the legislative history to find a meaning for the statute that was
not at all to be found in the text of it.
He was attacked for that by Justices Rehnquist, Kennedy, O'Con-
nor and I believe Scalia and in rejecting the so-called absurdity test
of the textualists. Justice Brennan said, "It does not strike me as
in any way unhealthy or undemocratic to use all available materi-
als in ascertaining the intent of our elected representatives rather
than reading their enactments as requiring what may seem a dis-
turbingly unlikely result, providing only that the result was not
absurd."
In the 1989 term, they looked at legislative history in 53 cases,
confirmed the plain meaning in 18 of the statutes. In 32 cases
where there was no plain meaning, it proved enlightening in eight,
and in the other 24, while providing no specific answers, it high-
lighted the Act's purposes so as to inform judicial interpretation. In
five, it dictated a different interpretation than they would have
found in the words alone.
I have not done a comprehensive survey, but I did a quick and
dirty sample of a dozen or so cases that have come down this term
so far. In two, it was ignored in favor of the dictionary by Justice
White and Rehnquist, but consulted in seven others by Justices
O'Connor, Stevens, and White. In three or four, there was no legis-
lative history looked at at all. Usually the judges will go to a dic-
tionary. Some will go to one or another edition, but they will go to
the dictionary rather than legislative history in order to implement
its remedial purposes.
80
Justice Blackmun looked at that and he said, fine, but they
never spelled out what those remedial purposes were, so we are not
sure and I am just going to look at the legislative history. However,
Justice Souter and Justice White would have taken that liberal
construction section that Congress had put in its own law and
made it dispositive as a tie breaker for one interpretation where
they thought the text and legislative history were not dispositive.
In the second case by Justice Souter called Rowland versus Cali-
fornia Mens Colony, the question was: Could an association of
prison inmates be called a person for purposes of being allowed to
file a suit in forma pauperis. As you know, the Dictionary Act in 1
United States Code 1 lays out many meanings for recurring terms
and statutes, but it also has the phrase, "unless the context indi-
cates otherwise."
In this case, "person" was defined to include association and you
might have thought that was the end of the case. But Justice
Souter decided that the context meant looking at other provisions
in the statute, they were counterindicative, and therefore, it did
not include association. However, four justices in a nine-person Su-
preme Court dissented, saying that they thought that the diction-
ary Act controlled and that the court had not faithfully construed
Congress' own dictionary law.
Now, I will give you, in a nutshell, my position on courts' use of
legislative history. I think we have to use legislative history. We
have to be allowed to use legislative history because, one, our stat-
utes are becoming so complex and they deal with such arcane sub-
jects, you know better than I, that it is not humanly possible any-
more to draft text whose meaning will be plain for all situations.
Under the Supreme Court Chevron rule, if the court cannot find
a plain meaning, whether Congress made its meaning clear, then
not the courts will decide what it means, but the executive agency
that is implementing the statute, its interpretation will be given
priority unless it is a totally unreasonable one.
I did a quick review of 22 major rulemaking cases heard in our
own District of Columbia Circuit last year. We get the vast majori-
ty of rule-making cases dealing with issues of statutory interpreta-
tion. The vast majority involve very technical regulatory concepts
including EPA regulation of lands, wastes, clean air or water, nu-
clear licensing, Medicare provider reimbursement, mining regula-
tion, airport security, gray market, customs regulation, ICC, reve-
nue adequacy levels, recycling requirements for Federal procure-
ment vapor recovery systems for light-duty vehicles, cable televi-
sion attachments.
All questions came to us of statutory interpretation. Now we did
not look at legislative history in all of them. In about eight of
them, we found the text in the structure of the stature to be
enough. But in the other 14, we did consult legislative history,
sometimes on our own and sometimes at the behest of one of the
parties.
Sometimes it merely reassured us that there wasn't anything de-
terminative there and what the parties had cited were what we
called inclusive isolated snippets. But in others, it dominated the
statutory analysis. In at least one, the Court, authored by Judge
Silberman, said Congress chose to use the legislative history, not
81
the general statutory language to make its meaning clear. In short,
we need it.
The second point is, judges do know how to pick and chose be-
tween snippets and really weighty pronouncements in legislative
history materials. In several of the cases in our own circuit, we see
such perception. Statements like one single ambiguous statement
of a lone legislator cannot conflict with the ordinary meaning of
the text. Judges spend their whole lives deciding what information
is relevant in other contexts and we should be trusted to do so in
this one.
Learned Hand said, "It is one of the surest indices of a mature
and jurisprudence not to make a fortress out of the dictionary, but
to remember that statutes always have some purpose or object to
accomplish whose sympathetic and imaginative discovery is the
surest guide to their meaning."
Three, the textualist alternatives, mechanical interpretation of
the words or judge-made canons do not seem preferable to me to
consulting legislative history. It is the legislators, not the judges,
who draft and pass the laws. Why should our more general as-
sumptions about what you are doing govern over your own words
about what you are doing?
In fact, I suspect it is an invitation to putting judicial preferences
about what is "sound public policy" and unguided assumptions
about Congress must have meant this or Congress must have
meant that above the best evidence of what they did mean.
My final and most significant argument in favor of legislative
history has been touched upon by Representative Kastenmeier and
that is that legislative history is the official authoritative record of
what Congress has done. It is not gossip from the back corridors. It
is the materials in which Congress institutionally explains to its
own Members, to the public and to judges what it thinks it is
doing. Even if we judges are skeptical that Members don't read it
all, and do they always read the full text either, we are not the
ones to make the judgment that it is not relevant or historically
accurate.
I find it quite puzzling, quite frankly, that the judges and even
agency executives feel they should decide that Congress' work prod-
uct is not worthy of consideration when it is the product of the way
the Congress has chosen to perform its constitutional function. A
vote on the product, to me, is implicitly a vote on the process that
produced the product.
Finally, do I have any suggestions on how Congress can more ef-
fectively organize legislative history for use by judges and agency
implementers? I think, perhaps in contradiction with Representa-
tive Kastenmeier, that if legislators can agree that they want a
particular provision or term construed liberally or narrowly, it is
useful for them to stay so.
Now, Justice Blackmun said you can not use words like "remedi-
al purposes" without spelling out what they are. But remember,
two justices in that case still thought that the liberal construction
clause should have determined the case. Drafters can't anticipate
every application of a complex waste disposal law, but I think they
can provide general interpretive aids about particular sections.
82
Secondly, again alluded to by Representative Kastenmeier, the
Federal Courts Study Committee on which he so admirably served,
gave a nice legislative checklist for all statutes which could head
off many technical questions in the courts.
What parts do you want to be retroactive? Do you want judicial
review, and if so, in what court, what kinds of judicial review, what
standards for judicial review, who do you want to have standing to
challenge particular actions pursuant to the statute?
He has also alluded to the Brookings assisted dialogue. Our court
has begun with both houses in which we forward to designated of-
fices cases in which a judge has suggested in the opinion that Con-
gress might want to look at the text again because of an interpre-
tive problem or in which the majority in dissent have differed on a
particular construction.
I am told that, last year, only nine such instances had been for-
warded. So the resultant burden on you should not be overwhelm-
ing. It may be, too, that a broader or more informal mechanism
can be instituted in which either a group of scholars or even a day
of hearings before an oversight committee can bring to the fore-
front all of the ambiguous terms and how they have been con-
strued, both by agencies and by the courts.
Four, Congress might revisit or have its legislative counsel revis-
it the Dictionary Act that I referred to in one of the Supreme
Court cases to see if more terms need to go in and if some of the
actual definitions have proved misleading or ineffectual.
Congress, I think, should also take heed of an increasing number
of situations in which courts are demanding a super clear state-
ment before they will interpret a law a certain way, even if ordi-
nary rules of interpretation would tend to put them in that direc-
tion.
That category of super clear statements now includes waivers of
sovereign immunity, 11th Amendment cases where a State might
be sued in Federal court, conditional grants from Federal agencies
to States, application of law extra-territorially. This heightened
level of Congressional clarity has been judicially imposed, but if
Congress wants to have its intent implemented, it has either got to
abide by it or challenge the court's right to adopt such require-
ments for a sister branch.
Finally, in many cases, the skeptics are correct. Legislative histo-
ry in both Houses is full of contradictions. This was certainly true
for parts of the Civil Rights Acts of 1991. One interesting technique
adopted there that might provide a precedent for an end-of-the-line
check on inconsistent legislative history is the fact that the confer-
ence report for that Act specifically said that in the case of one
particular section, the explanation in the conference report, not
anything that went before in the legislative history, should inform
the construction of the courts.
Now, that certainly makes the work of the courts easier and it
could make Congress' own work more likely to be faithfully con-
strued. At the end of important bills, it might be able to agree at
conference upon the crucial legislative history in some form of au-
thorized index as to which judges and agency heads could give pri-
ority.
83
Thank you, Madam Chair. I hope these comments will help. I for
one need legislative history to do my job, maybe not so much of it.
But perhaps some culling by the legislators themselves could make
it an even more effective tool for courts, myself and my colleagues.
Thank you.
Mrs. Holmes Norton. Thank you very much, Judge Wald.
Judge Kozinski.
STATEMENT OF THE HONORABLE ALEX KOZINSKI
Judge Kozinski. Madam Chair, Members of the committee, dis-
tinguished fellow panelists. Good afternoon.
I want to thank the committee for inviting me to express my
views on so critical a subject, one that goes to the balance of power
among the three branches of our government. I suspect, however, I
may have been invited here because I am rumored to believe that
the only legitimate use of legislative history is to prop open heavy
doors or to put under the seats of little children not quite tall
enough to reach the table. I hope I will not disappoint the commit-
tee by taking a slightly more moderate view today.
I do believe there are some theoretical and practical difficulties
in deriving wisdom from the legislative record of a complex statute.
Some of the problems include figuring out whose views are em-
bodied in a committee report; determining whether Floor state-
ments reflect the view of anyone except the particular speaker; and
accounting for the President's role, if any, in making or approving
the legislative record.
At the same time, I am ready to admit that legislative history
can be an immensely valuable tool for resolving certain types of
problems in statutory interpretation. First and foremost, legislative
history helps courts understand what problem the legislature was
trying to solve. Especially where some time has passed between a
statute's enactment and its interpretation, legislative history can
provide insights into the statute's historical context. And it can
expose assumptions shared by both proponents and opponents of
the legislation — especially where the assumptions seemed so obvi-
ous that no one bothered to articulate them in the statute. These
are just a few examples of ways legislative history can help courts
make sense out of statutes that don't make sense by themselves.
The problem is, in recent years, courts have allowed legislative
history to do much too much of the work of interpretation and this
has had adverse effects on the legislative drafting process. Because
my time is limited, I will offer only two examples — each illustrat-
ing somewhat of a different aspect of this problem.
The first involves what I can only call a totally boring house-
keeping statute — something very few people even in Washington
know or care much about. As you have probably guessed, I am
talking about 28 U.S.C. Section 1491(a)(3), enacted by the Federal
Court Improvements Act of 1982. Because one or two of you here
may have forgotten the precise language of this section. I will
quote it: To afford complete relief on any contract claim brought
before the contract is awarded, [the United States Claims Court,
now renamed the Court of Federal Claims] shall have exclusive ju-
84
risdiction to grant declaratory judgments and equitable and ex-
traordinary relief.
Note that I emphasized the word "exclusive." I think it is a
pretty important word. Just reading this language, one would
think Congress vested the awesome power of equitable relief in pre-
award contract cases with the judge of my court and my court
alone.
Enter the legislative history. In discussing this section, the
House and Senate Reports explain that exclusive doesn't mean ex-
clusive, but sort of exclusive: This enlarged authority [of the Court
of Federal Claims] is exclusive of the Board of Contract Appeals
and not to the exclusion of the district courts.
Now, this presents a classic example of what, in my book, is a
misuse of legislative history. The Senate and House Judiciary Com-
mittees agreed on language that — apparently — did not reflect their
intended purpose. Somehow they became aware of the problem but,
for unknown reasons, they chose to leave it in the statute and pro-
vide a fix by way of legislative history. In such a case, the legisla-
tive history does not merely cast light on the statutory language; it
recasts the language altogether.
A court faced with this situation is put in a difficult position.
Even among judges who rely on legislative history, statutory lan-
guage usually still comes first. Many are therefore reluctant to
look past very clear statutory language only to find equally clear,
but utterly contradictory, legislative reports.
Other courts take a more flexible view: They say that unambig-
uous statutory language cannot be contradicted by legislative histo-
ry, but they look to the legislative history to see if the statute is
ambiguous. The kicker is they then use the same legislative history
that created the ambiguity to resolve it. Go figure.
Predictably enough, the courts that have interpreted Section
1491(a)(3) have split along these lines. The Fourth and Ninth Cir-
cuits, plus the Second and Federal Circuits by way of dicta — inci-
dentally, in the formal version of my remarks, I have citations for
each of these. I know many of you will want to read these cases —
interpreted the language as giving exclusive jurisdiction to the
Court of Federal Claims — that is, to the exclusion of the district
courts. The Third and First Circuits and the Claims Court itself
have adhered to the legislative history and said that the Court of
Federal Claims has nonexclusive jurisdiction; the Sixth Circuit and
again the Federal Circuit in a different case in dicta agreed with
these later cases.
The Judiciary Committee's attempt to preempt this confusion by
means of committee reports rather than statutory language just
hasn't worked and has had several unfortunate consequences.
One, it has created a split among the Federal circuits that will
eventually have to be corrected by the Supreme Court or Congress.
Two, it has caused long-term uncertainty in the law, which in
turn wastes time, money, lots of paper and other judicial resources.
By my count, there have now been at least 20 published opinions in
the Federal courts wrestling with this problem.
Three, there has been shift of authority away from Congress and
toward the Federal courts. When Congress speaks with a clear,
purposeful voice, judges seldom ignore it, not matter how much
85
they may disagree with the result — barring unconstitutionality, of
course. The more wavering the voice of Congress — as when there is
a square conflict between text and legislative history — the more
likely it is that policy preferences of the individual judges will pre-
vail.
Four, the confusion surrounding 1491(a)(3) may have legitimized,
to some extent, a fuzzy reading of other portions of the same stat-
ute. "Look," a judge might say, "it is clear from Section 1491(a)(3)
that Congress didn't mean everything it said in the Federal Court
Improvements Act of 1982, so I can be just a little bit creative in
interpreting other parts of the statute."
Finally, and I think this is quite pernicious, it promoted the view
that legislative histories — particularly committee reports — deserve
the same level of respect as the statutes themselves. After all, here
is a case where two respected committees of Congress have gone
about amending the statute, not by amending the language, but
saying so in the committee report.
Before I turn to my second illustration — involving a statute
much different than 28 U.S.C. Section 1491 — I want to say just a
few more words about committee reports. As everyone here is
aware, committee reports have long been treated by the judiciary
as the Rolls Royce of legislative history. Even curmudgeonly judges
like me will occasionally be caught sneaking a peek at a committee
report. More recently, though, the pedigree of committee reports
has become somewhat specific. I can do no better than to quote
from a speech given a couple of years ago by Professor Martin
Ginsburg to the Tax Section of the New York Bar Association. I
should note for the record that these are Professor Ginsburg's
views alone, and should not be attributed to anyone else with the
same name.
"It is no doubt appropriate to consult legislative history to grasp
broad outlines of purpose, but everyone in this room knows it is to-
tally unreasonable to pretend that any of the details that appear in
a committee report ever came to the attention of, much less were
approved by, any elected body.
"The strange notion that the Joint Committee Staff bluebook,
published some months after the tax bill is enacted, merits the
status of legislative history, can only derive from a cynical recogni-
tion that, after all, the committee reports are written by staff and
never read or approved by Members of Congress, so how is the
bluebook any different?"
I attach a copy of Professor Ginsburg's text to the formal version
of my comments.
Now, let me turn to what I see as the second, and more serious,
problem: The case where legislators — well aware that statutes will
be interpreted by judges in light of their legislative histories — pur-
posely leave the statutory language vague and then take every op-
portunity to salt the legislative record with hints, clues, nudges
and shoves, all intended to influence later judicial interpretations
of the statute.
In a concurring opinion in 1987, I wrote the following passage,
which I believe expresses the moral hazard involved here: "The
propensity of judges to look past the statutory language is well
known to legislators. It creates strong incentives for manipulating
86
legislative history to achieve through the courts results not achiev-
able during the enactment process. The potential for abuse is
great."
While this manipulation has generally been subtle, it struck with
a vengeance during the enactment of the Civil Rights Act of 1991.
Given its wide recognition, I need not detail the crafty lobbying
and procedural maneuvering involved not in drafting the language
of this historic statute, but in planting legislative history land
mines designed to explode with full-fledged rationales and interpre-
tive methods, if stepped on by a black robe.
What I do want to discuss, briefly, are the implications of this
development. Here I must give credit to an excellent piece, au-
thored by Harvard student Mark Filip, title "Why Learned Hand
Would Never Consult Legislative History Today." The central
thesis of Filip's piece — a thesis I wish to endorse — is that whatever
one's initial view of legislative history as an aid to interpretation,
that value is destroyed once the participants in the legislative proc-
ess become aware that it will be used by judges as an aid to — some-
times as a substitute for — interpretation. Legislative history, if it is
to be of any help at all, must provide the type of background infor-
mation that is descriptive, that helps the judge step into the shoes
of the legislator. It cannot — should not — provide answers to specific
questions. Once legislative history becomes simply another field of
skirmish for the political process, it ceases to serve any legitimate
purpose. The statutory war is then won not by those who garnered
the most votes, but by those who outmaneuvered their colleagues
in fortifying the legislative record.
This process diminishes the power of Congress in relation to that
of the executive and the courts. The executive branch, as its name
suggests, has only the power to execute the laws; its range of dis-
cretion involved is inversely proportionate to the statute's preci-
sion. So, too, the courts, who have much broader leeway in inter-
preting statutes when they are vague and fuzzy. The more legiti-
mate options Congress leaves to the courts and to the members of
the executive branch, the less likely it is that the outcome will re-
flect the will of Congress.
If this process continues, it will dramatically and detrimentally
affect the delicate balance of power among the branches of our gov-
ernment, leaving Congress the weakest of the three. To anyone
who believes — as I do — that the public interest is best served by
three strong bodies that can provide checks on each other, this is
unwelcome news indeed.
Thank you.
[The statement of Judge Kozinski is printed in the Appendix.]
Mrs. Holmes Norton. Professor Katzmann.
STATEMENT OF ROBERT KATZMANN
Mr. Katzmann. I very much appreciate the opportunity afforded
us to come before this Joint Committee on the Reorganization of
Congress to address the important subject of legislative judicial re-
lations. In a few weeks' time, when the United States Senate exer-
cises its Constitutional responsibility to advise and consent with re-
87
spect to a nomination to the Supreme Court, the eyes of the coun-
try will be riveted on the process.
The inquiry by the Senate of a nominee is momentous, it is in-
tense, but that kind of direct communication between legislators
and judges is short lived. So, I think that the work of this commit-
tee, in looking at the relationships between the branches with an
effort toward improving relations between the branches, is especial-
ly important.
I am honored to be here with such a distinguished panel. I don't
know Judge Kozinski, but I very much appreciate his coming here
on short notice. Judge Wald and Congressman Kastenmeier, in my
view, are two of the most distinguished people on this planet. It is
just an honor to be here with them.
As we think about the questions that concern this hearing today,
they are all, of course, important. Why should Congress be con-
cerned about these issues? What problems do courts face as they
seek to understand statutes? How can courts better understand the
legislative process and legislative history?
How can Congress better signal its meaning? How can the judici-
ary make the legislature aware of its decisions interpreting stat-
utes? What kinds of institution processes might develop so that the
legislature can be aware of decisions interpreting its statutes?
I am going to talk here more about some of the practical steps
that might be taken and that have been taken in a very small way
focusing on the work of the Governance Institutes Project.
As to why Congress should be concerned, I think as Congressman
Kastenmeier and Judge Wald, I think, have indicated that what in
a sense is ultimately at stake is the integrity of the legislative and
judicial processes. To the extent that courts have difficulty under-
standing the legislative process which they interpret, when Con-
gress does not provide courts with the clear sense of its meaning,
then both branches have a problem in need of attention.
The question is what do we do about it. I won't go over much of
what is in my statement for reasons of time. To some extent, how
we look at the problem will depend upon subjective views about the
proper allocation of responsibilities between the branches. But
whatever views we might have about the relationships between the
branches and what the proper allocations of power between the
branches might be, I think we all share the view that understand-
ing how Congress functions, the factors affecting legislative out-
comes, and the ability of the judiciary to make sense of Congres-
sional intent are subjects which we should all be concerned about.
Based upon an empirical examination of the way Congress
works, we should better be able to ascertain how courts can better
interpret statutory meaning and determine whether and how Con-
gress can clarify legislative history.
To those engaged in the task of governance, that is the practi-
tioners in the judicial and legislative branches, the matter of devis-
ing practical measures to reduce tensions and improve relations is
of special import.
The problem has, it seems to me, at least two dimensions, the
first is the creation of a process in which representatives of both
branches unaccustomed and indeed uncertain about the very pro-
88
priety of meaning can examine critical questions, and secondly, the
identification of discreet issues susceptible of resolution.
What is required is an agenda which links conceptual ideas and
pragmatic solutions that is faithful to the Constitutional design.
Thinking about those kind of issues is what we have been trying to
do through the Governance Institute which began in part because
of the interests of Judge Frank Coffin who was then chair of the
Committee on the Judicial Branch of the Judicial Conference and a
former legislator who was concerned about ways of developing
closer links between the branches.
If we think about practical steps, we can think about them in
terms of three ways, that is the legislative process or clarifying
statutory meaning can have at least three dimensions. The first in
some sense is preventative. That is, it focuses on drafting, focuses
on anticipating potential difficulties and in dealing with them
before the bill becomes a law.
The second element focuses on the materials that constitute leg-
islative history and is geared towards finding ways for the Con-
gress to more clearly signal its meaning.
And the third part entails developing routinized means, so that
after the enactment of legislation, courts which have experience
with particular statutes can transmit their opinions to Congress
identifying problems for possible legislative consideration.
In the way of reinforcing what is already said, I would support a
number of the proposals that have been made and not go too
deeply into them.
First, with respect to drafting, I think a checklist could be useful.
It doesn't have to be a required checklist that people involved in
writing legislation have to sign off on in a formal vote, but simply
having this legislative checklist which the legislative counsel's
office has used already could be very helpful, I think, as legisla-
tive's staffs write their legislation.
In addition, I would support Congressman Kastenmeier's notion
of providing orientation seminars for judicial staffs, legislative
staffs about the ways in which each process works.
With regard to legislative history, I think that the notion of find-
ing ways to agree upon background and purposes of legislation, as
Judge Wald has described, is important, including Steve Ross' sug-
gestion that committee members, if at all possible, should be asked
to sign committee reports. As legislation nears passage, the floor
managers of the legislation should strive to reach agreement as to
what constitutes authoritative legislative history.
With regard to statutory revision, I think there are a number of
dimensions to the problem. First, as Congress revises statutes, it
might draw upon the experience of courts charged with interpret-
ing laws. Although the courts and the Congress affect each other in
many ways, uncertainty about the propriety of various kinds of
communications inhibit useful input.
For example, when a committee of Congress is considering revis-
ing a complex piece of legislation, it might be useful for judges ex-
perienced in interpreting the statute to testify as to the technical
difficulties in discerning congressional meaning.
On a few occasions, Congressman Kastenmeier in his committee
would call judges to testify when legislation was being revised. But
89
that is a practice that is used very infrequently. I would suggest
that its utility is one that is great. But generally, because Congress
does not avail itself of this opportunity, largely because of the un-
certainty of judges and legislators about such communication, I
think it is appropriate to also think about the development and re-
finement of protocols of communications between judges and legis-
lators as to statutory revision. That is, if there was a presumption
that this kind of communication would be favored by both
branches, the efficiency of the administration of justice, I think
that would be useful as we think about statutory revision.
Secondly, it would be useful to examine more closely as Shirley
Abramson has done of the Wisconsin Supreme Court, the States'
experiences with law revision commissions which provide for the
orderly evaluation of statutes bringing together representatives of
all three branches.
Another element of the statutory revision scheme has to do with
an experiment that we have begun with the District of Columbia
Circuit. The idea of this project really had its beginnings when
Chief Judge Wald invited us in the Governance Institute to partici-
pate in an effort to explore how opinions of the D.C. Circuit Court
were being considered in the Legislative Branch.
Others involved in this project include Judge Ruth Ginsburg who
coined the phrase "statutory housekeeping" as a means of improv-
ing statutory revision, Judge Buckley and the current Chief Judge,
Abner Mikva. What we have done was we took opinions of the cir-
cuit courts identified by the judges of the District of Columbia Cir-
cuit themselves, opinions which the judges themselves thought that
Congress probably would have a interest in and probably would
have some knowledge of. We took those opinions and went back to
the relevant congressional committees to determine their aware-
ness of those kinds of decisions.
We determined that except in those cases involving a major case
which everyone would know about or a case in which a losing
party went back to the Congress to seek some sort of legislative
relief, that generally speaking congressional committees were not
aware of these kinds of decisions that the courts issued.
Given that, the docket of the courts increasingly is devoting more
attention to statutory concerns. This absence of understanding, it
seems to me, raises all sorts of concerns.
With that knowledge, we then, with Congressman Kastenmeier,
began an effort to secure the interests of the Congress in an experi-
ment in which opinions identifying problems in statutes, largely
technical problems in statutes, would be routed to the relevant con-
gressional committees for review. And out of that process, we
would hope would come a dialogue about statutory drafting, inter-
pretation, and revision.
We are pleased to say that in a memorandum of May 22, 1992,
Speaker Foley, Majority Leader Gephardt, and Republican Leader
Michel indicated that they believed that the program would be
most useful if it were applied to all circuits.
Senators Mitchell, Byrd, and Dole later stated that this Govern-
ance Institute Project offers great promise as a thoughtful and pro-
ductive step in improving communications between the Judiciary
and the Congress to the benefit of both branches.
90
For its part, in its end-of-the-year report in 1992, the Chief Jus-
tice pointed to this effort as an attempt to improve relations be-
tween the branches by making it easier for judges to alert legisla-
tors to the statutory drafting problems identified in the course of
adjudication.
The First Circuit, the Third Circuit, Seventh Circuit and Tenth
Circuit have since joined in this effort. So, basically, we have virtu-
ally half of the circuits and others expected to follow.
Now, with this system in place. Congress will have a better sense
of the Judiciary's work. To the extent that Congress can resolve
problems identified in the statutes by the courts, not only will the
legislature's intent be better served, but also the judicial case load
may be somewhat reduced.
Moreover, we will have a better sense of congressional views
about judicial interpretation of statutes as we monitor that reac-
tion. Through the holding, we hope, of seminars, we will be able to
improve the dialogue between the branches as to the drafting inter-
pretation and revision of statutes.
Now, these core problems of statutory interpretation that we
have heard are with us for now and for some time to come. Some
issues may be intractable. When you have ambiguous legislation,
there will be a political dynamic often that drives the Congress to
pass ambiguous legislation. That is the price for securing a majori-
ty coalition.
But at the very least, heightened understanding between the
branches can improve our understanding of each other's processes
and improve the quality of the final product. By identifying and
breaking the problem down into smaller parts, I believe, by improv-
ing our relations between the branches though this dialogue, I
think that we can hope to see some better understanding of statute
making and statute interpretation.
[The statement of Mr. Katzmann is printed in the Appendix.]
Mrs. Holmes Norton. Thank you very much. Professor Katz-
mann.
Mr. Kastenmeier, I was interested that you indicated that one
action that might be taken by the Congress might be to give more
review authority to counsel. It occurred to me as I thought about
that, that in essence, the job of writing statutes falls almost entire-
ly to legislative counsel, that the mechanics, as it were, are who
compose the words.
As we debate on the Floor, almost never do we debate actual
words from the statute. What we usually debate are points of view
about the statute with almost no reference to what the words are.
Few of my colleagues, I am certain, sit down and read the words of
even simple statutes and certainly not the Transportation Act that
was passed last year in multiple pages.
I wonder if you would speak more about what role legislative
counsel might play.
Mr. Kastenmeier. Speaking about the technical review of legisla-
tion, they indeed might be better able to be sure that is adhered to.
Perhaps I should not use the term "authority," but what I had in
mind was that that review, an independent review by legislative
counsel of the work product would be helpful in ensuring that tech-
91
nical errors and certain legislative questions that might be later a
problem for the courts in review could be responded to.
They currently have — at least in the House, I cannot speak for
the Senate — a very large and competent staff to do that. They are
generally used, but I don't think there is any particular require-
ment that they be used.
I think access to them, perhaps even some sort of mandatory
access to them, would certainly improve the legislative work prod-
uct.
Mrs. Holmes Norton. I wonder if you think, given the fact that
legislators are disinclined — in fact, I don't see how they could be
inclined — to read the real words of a statute, whether legislative
counsel might point out in advance that there are word problems
that they ought to be aware of.
Mr. Kastenmeier. Yes. They frequently do that. As I say, I think
it is sort of hit and miss in terms of resort to legislative counsel for
that purpose. It ought to be more routine and regularized, in my
view.
Mrs. Holmes Norton. Judge Wald, I wonder if you might give us
some insight from your own experience, your considerable experi-
ence as a Court of Appeals judge. As you have been about the task
of interpreting statutes in the way that you mentioned in your tes-
timony, have you ever thought that there were ways in which the
Congress could have better indicated its meaning or have you
simply said what I am supposed to do now is go to legislative histo-
ry?
Have you wished the Congress would have done certain kinds of
things that we had not done or did you consider it that that would
have been perhaps impossible or too much to ask and simply go to
look at the next best thing, the legislative history?
Judge Wald. I have certainly wished that where there is conflict-
ing legislative history, particularly where you have some history
that seems to predispose toward one interpretation in one of the
bodies, the House, say, and then you have a different bill going
through the Senate with some different kinds of legislative history
suggesting a different interpretation of a key principle of the stat-
ute, I have often wished that when the conference committee
comes together and decides on a particular provision, if it is not
adopted wholesale from one or the other house, that the conference
committee might give some thought to indicating what it meant by
taking a particular choice.
Did it really mean to adopt not only the provision in the House
bill, say, but all of the discussion, not all of the discussion but the
key points of the discussion and the report that went with it?
I do think that there are some major pieces of legislation in
which you can just predict very easily that a particular provision is
going to be very controversial and is going to be litigated in the
courts. If perhaps there is some thought given to that by the Con-
ference Committee, they could make our job a lot easier.
I would also like to add, it is not a question of just going whole-
sale through the legislative history and saying, aha. Representative
X said this and Representative Y said that. In the vast majority of
cases, I think we avoid what my colleague here worries about, that
the legislative history will trump the actual statute because, in
92
most cases, where we use it, it is because the statute is ambiguous
to begin with and we want to get some help to know whether Con-
gress even thought of the problem and gave any indication.
It is not that it will tell us exactly how to interpret the particu-
lar words. It will help us. It will give us some indication that we
are on the right wavelength.
Mrs. Holmes Norton. Thank you very much. Judge Wald. I am
going to run up and run back in time for Mr. Allard to hopefully
get there in time to vote. I will be right back. Mr. Allard will take
over.
Mr. Allard (presiding). Thank you. Madam Chairman.
I want to thank the members of this panel for being here with us
to discuss your views.
I want to bring up an issue dealing with the separation of powers
between the executive as well as the legislative and judicial
branch. One of the things that is very popular to our constituents
back in our district is this issue of Congressional exemption. Con-
gress, for one reason or another, decided not to apply the laws to
itself, so they exempted themselves.
If we look back into the Federalist Papers, there is a lot of con-
cern about the Congress exempting itself, and because it would do
that, it sets itself aside as an elite body.
I am one who would like to bring the Congress under the laws
that everybody else has to live under. The argument against that,
from some of my colleagues, is that there is a true separation of
power.
For example, if you are talking about regulatory provisions, with
the regulatory agencies coming in and expecting the offices, that
that breaks down the separation of power.
One of my thoughts is that that is why we have the courts there.
It is that if there is a conflict between the executive and the legis-
lative branch, that one of the functions of the court would be to
resolve that and make a decision if they think that the regulatory
process would overstep to the point that it was interfering with the
functioning of a legislator to perform their duties.
I would like to hear some of your perspectives on the issue as it
might apply to the Congress. Does anyone want to talk about that?
Judge Kozinski, would you start?
Judge KoziNSKL Yes, I very much would like to talk about it, but
I cannot. You have raised an issue that is not only very difficult,
but one that is quite possibly and perhaps likely to arise in the
Federal courts. As much as I would enjoy discussing it over chess
or with drinks some afternoon, it is one of those things that if the
issue does come to the Federal courts, I believe I should not express
a public view on it.
Judge Wald may feel differently on this.
Judge Wald. Not on the basic notion of anything that would
come before us. The only thing I would point out just historically is
that there have been some statutes where Congress has brought
itself under the regulatory regime. Take the Ethics in Government
Act, and then generally it designates its own enforcer outside,
sometimes, of the Executive so that that kind of problem will not
arise.
Mr. Allard. A reasonable enforcer might be whom or what?
93
Judge Wald. That would depend. I assume you have your own
ethics office. Each branch, including the Judiciary, which has some
of this problem, under particular statutes too, that it has problems
in being put under another branch.
So, for instance, just using the Ethics Reform Act as an example,
the Judicial Conference supervises the ethics laws for us. An office
in the executive supervises it for the executive and you have your
own office supervising it up here.
Mr. Allard. As I understand the Constitution, it is up to each
individual house to discipline its own members. Maybe that does
not apply as directly. I would just reply to Mr. Katzmann about
why we don't have more people from the Judiciary testifying on
issues before committees. One of the things that we run into is that
they want to comment because they are afraid that they might
have some impact on some case that is going to be pending or is
pending before the courts at the time.
So, how do we resolve this, Mr. Katzmann, so we can get more
input and public discussion on the language and the interpretation
of that language that goes into legislative making?
Mr. Katzmann. I think that perhaps the task is to improve our
understanding about what kindis of communications are appropri-
ate and not appropriate, that is to say that we could come up with
distinctions about particular kinds of discussions which would be
appropriate or not be appropriate.
For example, if the question is we are devising a complex piece of
legislation and the question is really about what kinds of technical
issues were difficult for the court as it interpreted the legislation,
that certainly would be different from a question that asked about
the merits of the particular legislation. Talking about the merits of
a piece of legislation and the judges' view about the merits of legis-
lation, I think, would be inappropriate. But talking about some of
the technical difficulties that arise could be useful.
I think Congressman Kastenmeier could talk to this issue be-
cause I believe that in the copyright area, he held a hearing in
which I think it was Judge Newman, Judge LaVall, and some
others testified, Judge Oakes, I think.
Mr. Kastenmeier. Yes. That is correct. I think before my sub-
committee, I have probably over the years heard from as many as
30 to 40 judges as witnesses, perhaps half of them on court-related
matters or perhaps more than half, but some on other subjects.
And I thought they were superb witnesses. They didn't have a
self-interest in the l^islation. They had a track record of having
considered it almost as a scholar would for an extended period of
time and they were willing to speak about it and they proved to be
superb witnesses.
Mr. Allard. I would like to give you a little more time, Mr.
Katzmann, for the record. If you would like to finish your state-
ment, that would be fine. We have a vote pending right now. I have
about three minutes to make that. We were trying to stagger our
time so that Congresswoman Holmes Norton would be here to pick
up the gavel when I walked out.
I will have to call for a brief recess on this committee. She
should be back here in about two or three minutes, I would guess.
94
So I will go ahead and recess the committee, and if you would like
to finish your statement for the record, you can do that.
Mr. Katzmann. Thank you.
[Recess.]
Mrs. Holmes Norton (presiding). Judge Kozinski, I was interest-
ed in your hypothetical, given the ambiguity, and ambiguity is a
mild word for it, and the use of exclusive on the one hand and the
apparent failure of legislative history to straighten it all out on the
other.
What should a judge do in those circumstances?
Judge Kozinski. Well, what I was trying to point out was that
there are really two legitimate ways to go in dealing with that. I
think a judge applying that statute and trying to be faithful to his
or her function and to the legislation presented was confronted
with a real problem, a situation where the language of a statute
said exclusive and then the committee report apparently recog-
nized at some time before the legislation was passed that it was not
adequate.
Mr. Holmes Norton. So you probably had a situation where the
ambiguity or the error was not discovered until after the statute
had passed and so they were left, for all practical purposes, with
doing something in another document.
Judge Kozinski. I was not there. I should tell you none of those
indicated that were cited are my cases, so I am not defending my
interpretation. The solution, though, which is to take a committee
report, and if we say the committee report is not created until
afterwards, then we are really going to have a difficult epistemo-
logical problem, and that is to say, by taking the meaning of a stat-
ute that had gone to the Floor of Congress and has been passed and
signed, and you are diminishing it by a committee report.
If it was not contemporaneous, if it was not done before the legis-
lation was passed but afterwards, then the legitimacy of that kind
of a fix is open to question. Some judges say it is fine. Others
judges say it is not. I have read all of the cases. Again, I cited in
my statement, I think they are open to plausible interpretation by
judges who faithfully try to apply the law.
If you look at the judges, you will find no pattern in terms of Re-
publicans or Democrats or liberals and conservatives. It is quite a
housekeeping statute. There is no politics or philosophy behind it.
It is just trying to get the law right. Yet, they have split badly.
The question I have is: If we endorse the notion that you can de-
tract from the meaning of a statute by use of a committee report,
what does that do to the shift of power between judiciary and the
courts?
It seems to me that the more pieces that you leave on the table
that the courts can play with, the more pieces you leave on the
table for the executive to play with, the less control Congress will
have on how its legislation is implemented. When the Congress ap-
proves this kind of device, as happens with the case that Judge
Wald cited where Judge Silberman said the meaning of the statute
is where Congress put it in the legislative history.
It seems to me that at that point, you have blown open the proc-
ess and you have allowed judges to reach a far wider range of re-
sults than if you just say you have had to stick to, let's say the stat-
95
ute, plus the approved committee report, plus one or two other
things.
For every case that I have seen where the legislative history
really has been genuinely helpful and has genuinely given insight,
I can take two cases, maybe more, I can come up with a very long
list where the language of a statute was clear but the judge did not
like it. So what they did was, they found something in the legisla-
tive history that kind of supported their result. Maybe it only hap-
pens in the Ninth Circuit, but I think I have seen cases out here as
well, and use it to diminish what in fact was an Act of Congress.
This is not about, as I think Congressman Kastenmeier suggest-
ed, that somehow those of us who believe in statutory language and
are suspicious of legislative history, somehow were rejecting the
process, somehow we are telling Congress how to legislate.
We are trying — I am trying just as hard as anybody else in my
own way to do what Congress, that entity, the body that makes the
laws, wants me to do. I am confused. The more things you throw
out there that you say are legitimate to look at, the more confused
I am.
Mrs. Holmes Norton. You have cited a response from Judge
Wald, I see.
Judge Wald. You saw the body language, I am sure. Madam
Chair.
My experience may be somewhat different in our circuit. I would
point out in my experience, in looking both at the Supreme Court
and at our own circuit, it is a very small minority of cases where
you find something in the legislative history that flaunts, defies, or
indicates a completely different meaning than the statute.
I think the statistics I had in the 89th Session of the Supreme
Court were 53 cases in which legislative history was used, and five
in which it suggested a different meaning than the statute. Gener-
ally, it confirms the plain meaning or it gives you some help in an
ambiguous situation.
Now, let me just point out, because you did pick up on the exam-
ple I gave of Judge Silberman's decision where he did say exactly
what I said. He said that Congress chose to use the legislative his-
tory.
What happened there was you had a fairly complex statute, the
Atomic Energy Act. Congress had said in one amendment that, in
an application for a license, an antitrust review should be conduct-
ed. The question then came up, when some of these old, 40-year li-
censes were being renewed, did that require an antitrust review? It
simply was not on the face of the statute. Yet the court had to
decide it. Courts don't have the privilege of saying take that case
away. It is too hard. We cannot decide it. We have to come down
one way or another.
In that particular case, by looking at the joint committee report,
they were able to find out that Congress in fact gave a clear indica-
tion it meant just applications and not 40-year renewals.
Now to me putting all the pieces on the table, especially when
Congress made up the pieces, we are not pulling the pieces from
out of thin air or from the newspaper reports. When Congress
made those pieces, I would rather have those pieces and be left
with trying to distinguish between the weighty pieces and the ones
96
that are some solitary legislator who doesn't like the bill at all ob-
jecting and saying it really means this, than to be told that I just
have to ignore that.
We don't, in any other aspect of judicial construction, ignore evi-
dence. For instance, take a rulemaking. When we decide whether
or not the administrative agency has made an proper rule, that
rulemaking record may be full of extraneous stuff, but nobody says
to us, you cannot look at that; you can only look at certain predis-
posed parts of these. They trust us as Article III judges to be able
to make some kind of discerning difference between what should be
looked at and what should not.
I think by and large, in looking at most cases in which legislative
history is used, perhaps I was not that familiar with your example,
perhaps that is an exception. It seems to me they do make a simi-
lar cut.
Mr. Holmes Norton. Professor Katzmann, do you want to weigh
in on this subject as well?
Mr. Katzmann. It seems to me that if we ignore legislative histo-
ry, that essentially what we are doing is increasing the power of
judges, not decreasing it, because if the words of a statute are am-
biguous and if for the most part we confine ourselves to the words
of a statute and not look at surrounding evidence, then we are in-
creasing judicial power rather than honoring congressional intent.
The task really is to find ways to make legislative history more
authoritative, to recognize that there may be excesses in legislative
history, but to realize that without legislative history, we cannot
really understand what it is that Congress meant.
That, I think, is really the task for us, not to downgrade legisla-
tive history, but to see how we can improve it to make it a more
workable product.
Judge KoziNSKi. Can I speak to that using Judge Wald's exam-
ple? I have never seen this case. I know nothing about it except
what Judge Wald has told me here today. But let's see how this
worked. We have the statute, according to Judge Wald, that said
for an application for a license, you have to get one of these re-
views. Now, a renewal is an application for a license. Let's say you
don't look and there is no set legislative history.
What you would get is a situation where somebody says, hey,
give me a license. And the court would look at the language of the
statute and say, oh, you want a license, you have to get an anti-
trust review. It seems to me the degree of freedom that you have at
that point is fairly narrow.
But let's say you are a judge who really is not happy about anti-
trust reviews, who thinks they are bothersome, a kind of pain in
the neck, unnecessary, and unuseful. You say, well, I see an ambi-
guity here. When you say a license application, maybe they don't
mean all licenses. Maybe renewal licenses are not licenses. But
why are renewal licenses not licenses? Renewal licenses are li-
censes just like any other license.
That gives you an excuse for looking behind and you find some-
thing that detracts from the statute. You have two choices. Up can
say, well, a license is a license, or you can say a license is not a
license because you see renewal over here.
97
So you now have two options. You want to talk about power of
the judges, who has more power, a judge who has only one option,
a license is a license, I don t like the result, I hate it, I think it is a
bad thing, it is inefficient, but I must do it. Or a judge who says,
look, I can look back here and make for myself a second option.
I would suggest that the power is with the judge who can carve
out for him or herself a second option this way. Again, I know
nothing else. I am sure Judge Wald's case is more complicated than
either she or I have discussed, but it points out the real problem.
Mrs. Holmes Norton. You illustrate where the power is, but
where is what we intended?
Judge Wald. In the report.
Judge KoziNSKi. How do we know that, Madam Chairman. How
do we know that? When the statute says a license and everybody
votes for that, £uid some people think, gee, a license means a li-
cense. Every time you get one of these applications and you come
up for review, we want to be sure you are not committing an anti-
trust violation. It is perfectly sensible.
Then months later, somebody in some committee office, some-
body comes up with something and says, well, we didn't really
mean people coming up for renewal. They are kind of exempt.
Judge Wald. It wasn't months later in this case.
Judge KoziNSKL I was jumping at the example. To tell you the
truth, I used to live on the Hill but I never saw when these reports
were made. But they may be made contemporaneous. It could be as
the chair suggested, it could happen later, but it doesn't happen at
the point when people vote for it.
All I am saying is it may be the wrong result reached in a par-
ticular case, but if you want to talk about a shift of power between
the two branches, if you want to be sure that judges are limited in
how they apply the statute this body enacts, let me suggest that
the way to control it is to put more things in the language and
fewer things in these other things that will allow people who don't
like antitrust review who think it is too much to go behind and
find a way out.
Mrs. Holmes Norton. Professor Katzmann, your work has tried
to focus us on being less rigid about what we learned in grade
school about the separations of powers. We were told that was the
great genius of the American system and our forbearer came from
another system which taught them separation of powers was im-
portant in a democracy, at least in the democracy they were trying
to build.
I wonder if you could say a word that would clarify just how
rigid separation of powers was meant to be and how relaxation
might be appropriate to solve the problems that we have been dis-
cussing this afternoon.
Mr. Katzmann. It is my view that the constitution did not create
separate institutions but rather as Richard Newstat noted long ago,
it created separate institutions sharing power, that if we think, for
example, of the legislative judicial relationship each time the
courts interpret a statute, an Act of Congress in some ways they
can be thought to become as much a part of the legislative process
as any other part of the process. Judge McVay has written about
that.
98
So, therefore, given the fact that the institutions interact with
each other and affect each other, it seems to me appropriate to in-
quire as to how each branch can relate to each, operate consistent
with each branch's constitutional prerogatives without encroaching
upon the prerogatives of each branch.
In the area of statutory — the making of statutes and the inter-
pretation of statutes and the revision of statutes where both
branches are so intimately involved with each other's processes, I
think it certainly makes sense and certainly the (Constitution does
not preclude in any way that each branch try to have a better un-
derstanding of the other's work product with an eye toward im-
proving that relationship.
Mrs. Holmes Norton. Even when cases might be involved at a
later point in time?
Mr. Katzmann. If, for example, a court interprets a piece of leg-
islation, the Congress at any point would be free, if it wanted to, to
change that piece of legislation, change that interpretation if it
wanted to. The question really is providing enough information to
the Congress about what the courts are doing.
The courts issue these opinions as a matter of course. It is all on
the public record anyway. So really what we are proposing is
simply that which is already publicly available identifying prob-
lems, opinions, identifying problems in statutes to be transmitted
to the relevant congressional bodies.
Out of that process, I think Congress will have a better sense
much how the courts interpret what they do and we may see if we
can get, under the right circumstances, through workshops and
other devices judges and legislators together, we may see improve-
ments in the way that the branches interact with respect to the
making of laws. The law making function, in a since, would be
shared by all institutions of government.
Mrs. Holmes Norton. I think it may sound strange to the Amer-
ican ear, but again, we have apparently or perhaps have forged
constitutional barriers that are necessary and that work against
the kind of communication among branches that might do away
yvith some of these problems. Mr. Kastenmeier, I am particularly
interested in the perspective you have as a former member now
working on these issues who had to live with them in your former
life.
To us in the Congress today, everything seems to be more compli-
cated than it surely was before. I am not sure that is the case as
we lack the perspective of knowing what went before. Are we look-
ing at greater difficulty inherent in signaling to regulators or
judges what we mean or is this simply an endemic problem, a prob-
lem of language, an institution allege problem.
I am trying to discern if we are dealing with ordinary complexity
or greater complexity. If it is greater complexity, then the answers
might be different than they would be if this is simply inherent in
the way the institutions have always functioned.
Mr. Kastenmeier. I surmise there is some additional difficulty in
1993 as opposed to 1958 or any earlier period of time. I think the
institutions have all grown substantially in workload, numbers of
everything. Whether this is the judicial branch or the legislative.
99
one of the complaints is, we have increasingly become reliant upon
staff. That is true. But I think that is a given.
I think that is also true of the judiciary. It increasingly relies
more and more on law clerks and the like. It is true of the execu-
tive branch. I think life is more complex. We deal with more tech-
nical issues. This is one of the problems confronting your commit-
tee, your joint committee, how can you simplify congressional
tasks? Do you have too many committees, et cetera?
I don't think that is a very easy thing to do. I do think that the
Congress has more difficulty. Fewer people are able to focus on any
one subject. You cannot learn about 50 or 70 or 100 subjects simul-
taneously. The Congress is reliant on subcommittees and commit-
tees and their work. That is why I think the Legislative History
Committee reports and other indicia of legislative activity in addi-
tion to the act that becomes law which, in itself, may not be voted
on actually.
I have passed many bills. There have been no recorded votes on
Monday afternoon on suspension. So the notion that there is some-
how the attention of the whole body, 435 Members, is focused on
that piece of legislation, it is really a fiction that we all, in a sense,
vote on it. We do at least indirectly.
So we are reliant on small groups in the Congress achieving
things legislatively. That will increasingly be true. However, you
will be organizing the Congress, I suspect. But the world of a centu-
ry or 50 years ago will not be returned to. I think that is what we
are left with in dealing with this question.
Mrs. Holmes Norton. Increasingly, I think we have to face the
fact that when people go upstairs, as I just did, to vote, that we are
voting on concepts and not language. I was not there to hear the
debate. I went upstairs, looked at somebody I trusted and asked
how are you voting. He told me how he was voting, told me what
the subject matter was, told me who was the sponsor, and then I
knew how I wanted to vote.
There is no way in heaven and earth you can do it differently,
even if we were to draw down the committees to one and spend all
our time on that one committee.
I say that to you truthfully because I believe these questions
have to be worked out conceptually and we all have to come to this
same understanding of what the problem is and not pretend that
there is a solution such as 540 Members of Congress coming to
grips with the language of thousands of statutes that are necessari-
ly passed in this body every year.
I want to say to Mr. Kastenmeier, Judge Wald, Judge Kozinski
and Professor Katzmann how much the joint committee appreci-
ates your testimony on perhaps the most complicated subject that
has come before a joint committee that has heard much complex-
ity. I am particularly grateful.
The subject so fascinates me that next year at Georgetown,
where I am still a professor, as Mr. Katzmann knows, I am going to
teach a course intended to explore the gulf between legislators and
enforcers, a research seminar at the law school. So I have more
than a casual or even a joint committee interest in this subject.
100
I come to this interest, in part, because I have been a regulator
and now I am a Member of Congress, thus the difficulty I see up
close and regard it as important for us to at least try to deal with.
You helped us immensely in that regard. I want to personally
thank you for myself and for the Members who were not here and
to tell you that, although we might not read every statute, my col-
leagues do in fact educate themselves about what those who come
to testify have said when Members themselves were not able to be
here. Again, thank you to all four of you.
We have had approximately 200 witnesses, outside groups, ex-
perts, political scientists, citizens, former Members of Congress,
former members of the staff of Congress, and of course current
Members of Congress representing a broad perspective all across
the political spectrum and in a bipartisan way, more than 30 hear-
ings we have had of the joint committee.
We wanted to especially have this day of hearings near the end
of our process to allow the colleagues and others including outside
groups to have a last opportunity to share thoughts with us in the
hope that perhaps some of the testimony from earlier witnesses
and some of the data developed in earlier hearings would spark
ideas that have come to us, and that is the reason this day of hear-
ings is so important to the committee.
We will begin the deliberations shortly. I might say to my col-
leagues, we had a very good retreat this past weekend with 22 of
the 24 members of this committee present demonstrating the very
strong interest members of this committee have in achieving real
reform in the congressional structure.
The committee, as all of us know, is bipartisan and has an equal
number of Democrats and Republicans. The thing that was very
encouraging to my was that, across the board, there was a real
strong commitment to try to bring about meaningful change. There
were no divisions along party lines, no basic divisions between the
House and Senate.
This w£is a good, I think, consensus beginning to emerge as to
what we can do and certainly a consensus that we should achieve
as much as we possibly can that the times are right for real reform
of this institution and that we perhaps have a better opportunity
than has been given any other similar committees that have oper-
ated in the past to achieve those reforms. There is a determination
to do that.
So we will be after the conclusion of these hearings and after
hearing former Vice President Mondale in our concluding hearing,
we are going to be working with a series of informal groups led my
members of our committee looking at critical areas, ever5rthing
from the budget process to ethics process, to what we do to make
Congress live under the law that we pass, to the committee struc-
ture, obviously, which is exceedingly important to our staffing pat-
terns. All of the areas that we have discussed in the course of these
hearings we will begin to look at in detail.
We have approximately 500 proposals that have been put before
us to examine and we are going to be hard at work for the remain-
der of July and the August recess to put together those proposals
that seem to have a consensus of support and beginning to mark
up our recommendations in September when we return.
101
The committee is working hard. It is well on schedule £ind on
track. I appreciate the fact that Members of the Senate and House
have demonstrated the interest to take the time to come and share
their thoughts with us.
[Whereupon, at 2:55 p.m., the Joint Committee was adjourned to
convene at the call of the Chair.]
102
APPENDIX
STATSMEKT OF JOHN O. MARSH, JR.
TO THE JOINT COMMITTEE ON THE ORGANIZATION OF CONGRESS
I appreciate your invitation to testify before this
Committee. Because I was Chairman of a study of Congressional
Oversight of National Security in 1992, The Center for Strategic
& International Studies, I would like to quote from the Foreword
of that study because it provides a backdrop for ny statement.
"The u. S. Congress has not engaged itself in a significant
reform of its own organization and procedures since 1946. In the
intervening decades the .country — indeed, the world — has
trzmsformed itself dramatically. Changes that have had a
particularly pervasive effect on Congress include the following:
•The population of the United States has increased by more
than 100 million.
•The nation has waged four wars, including the cold war.
•The Soviet Union as it was known for sore than 7 0 years has
disintegrated.
•Six new cabinet-level departments have been created:
Health and Human Services, Snergy, Housing and Urban
Development, Transportation, Education, and Veterans'
Affairs. In addition, several major new independent federal
agencies have come into being, including the Central
Intelligence Agency, the National Security Agency, the
National Aeronautics and Space Administration, and the
Environmental Protection Agency.
103
•A r«voiutian in transportation has occurred; an intarstate
highway system has been constructed, nore people travel by
air than by train, and the airline industry has leurgely been
deregulated.
•ABiericans have noved into the space age, put people on the
noon, and have bad to address nev national problems,
including the environment, drugs, and raapant criae.
•The United States has lost much of its coapetitive edge,
and there are serious questions about the effectiveness of
its educational system.
•The information age has dawned, crsating new opportunities
for learning, knowledge, and productivity.
•The u. s. federal deficit has soared to trillion-dollar
figures, interest on the national debt has become the second
largest annual federal expenditure, and the balance of trade
is consistently adverse.
•Western Europe is moving toward a unified econoaic
community by the end of 1992, while U. S. economic recovery
lags.
•Xs an institution, the U. s. Congress is at an all-time low
in public esteem. Being a member has become a full-tiite
job, and questions about congressional procedures, the
explosion of committees and subcommittees (a total of 292 in
the 102d Congress) "perks," and the confirmation process
have given rise to term limitations and antiperk
legislation.
104
Fortunately, congress is not oblivious to these trends
because only congress can reform Congress. There are internal
proposals for reform circulating within it, and others have
emanated from the White House. Congressional reform is a matter
of concern for the recently created ad hoc Joint ComiBittee on the
Organization of Congress .
In this report we have addressed ourselves to one particular
subset of this problem — congressional oversight of national
security. The report is offered as a stimulus to serious
consideration of aeans whereby this process might go forward in
an atmosphere not of obstruction but of friendly, courteous
civility, of cooperation — that is, an atsosphere of comity."
Extracted from the Report on Congressional
Oversight of National Security, a study by
the Center for Strategic and International
Studies.
October 1992
105
Yours is a very important task. I wish you w«ll in your
•fforts because the Congress is the only institution that can
refom Congress.
When I survey the work of the Committee and its goal and
purposes, 1 recognize your task is not simply congressional
reform but to achieve a more effective federal system based on a
congress that is responsive and effective.
I would point out to the Comnittee that of all of my federal
assignments, my service in the House of Representatives was the
cornerstone. It was the most essential and the greatest help in
various assignments later in the Executive branch. Not only did
it give me an understanding of the legislative process, but I was
able to estiiblish continuing relationships with members and staff
which were vital. I have no complaints to direct to any in the
Legislative branch upon the manner in which 1 was treated. AIL
of my relationships were most cordial and friendly even in areas
in which there was significant disagreement as to policy.
Consequently, having served in the Congress was of an enormous
benefit to me in addressing the responsibilities associated with
executive duties.
Because of ny executive service, I believe I could be a more
effective member of Congress now than when I previously served.
I suspect other former members who have held Federal posts would
make the same comment.
An observation I would make, which I'm sure others have
made, is that I believe it is vitally necessary to restore comity
106
bfttvaen the executive and legislative branches. It is my view
that the breakdown of comity has been one of the great
governmental casualties of recenc tines. Comity is not easy to
define but in simple terns it is courresy barween the branches.
It is a lubricant to ensure that the wheels of government turn
smoothly.
In considering congressional refors, I think it's necessary
to look at the role of the Congress. This role has been an
evolving one since the American Revolution. it is important to
remember that our federal system is an executive system as
opposed to a parliamentary one. The origins of this are to be
found in our revolutionary experience. I would point out that
the American Revolution was a war that was prosecuted for the
most part without an executive branch of government. The
Commander- in-Chief , General Washington, was a member of the
Second Continental Congress. He was chosen by his fellow members
to be the Commander-in-Chief at the same time the Congress
established the first regular army. The Army would be called the
Continental Line, bearing the naune of the Congress that was its
creator .
The fact that there was not an executive branch is important
because of certain precedents that relate to congressional
functions and authorities which later would be codified in part
in the Constitution. The decision to establish an executive form
of government was a deliberate one in ordsr to make the national
government mere effective. If you examine the history of that
107
period. Congress was net an efficient agency insofar as th«
conduct of the war was concerned; but notwithstanding the
difficulties of the process together with the patience and
character of General Washington, the colonists prevailed.
Despite these inadequacies, the revolutionary experience
would nevertheless be the beginning of a pattern of significant
involvement in a quasi-executive way by the Congress in the
conduct of government which prevails to this day.
The American constitution had a dual purpose, the first and
foremost purpose being the establishiaent of a representative fana
of government with the protection of individual liberties. Its
second purpose was to unite the independent states into a
political entity whereby the new nation would have the means to
engage in diplomatic affairs and international coitmerce. This
second dimension is a very important one because the infant
nation immediately discovered the Articles of the Confederation
were totally inadequate when it cauae ts engaging in foreign
^£t&i^s and international commerce. However, it should be noted
that, in the earlier revolutionary experience, while the Congress
played a key role in the prosecution of war it also had
responsibility for conducting diplomacy. These precedents of
Congressional involvement in the conduct of foreign affairs are
still with us. I do not urge this be changed, rather better
focused.
Because of my association with the Army, I found of
particular interest that, of the forty people who signed our
t
108
Constitution, twenty-three had served in the military in the
American Revolution, either in the regular forces — the
Continental Line — or in the militias of the states.
Notwithstanding they were a majority in the Philadelphia
convention, they nevertheless would vest the life-and-death
powers of the nation not in the miiitairi* or the executive but in
the legislature. The powers to raise taxes, to declare war, to
raise armies and maintain navies.
Indeed, there is an order of precedence in the Constitution,
Article I is the Legislative, Article II ia the Executive,
Article III is the Judiciary. The preeminence of the legislative
branch is at the heart of the American Hepublic. xt is
significant to note that in the order of precedence in Article I
is the House of Representatives. This was the only body at that
time elected by the people. The Senators were elected by the
legislatures of the states, a practice that prevailed until the
adoption of the 17th amendment in 1913.
m addressing congressional reform and the effectiveness of
the total federal system, I would ask the Committee to address
the important principle of separation of powers and its
preservation. We are in a period of what I would call
congressional ascendancy. In the history of the Country there
have been cycles of legislative and executive supremacy. The
American Civil War would see an enormous assertion of executive
authority. In the years immediately following the War, we would
see the pendulum swing the other way with greater assertion of
109
congressional authority. I believe the Appropriations cosuoittce
was for a period of time auolished but later ra-instated. World
War I would see again a rise of executive authority. In post
World War I years, by rejecting President Woodrow Wilson's policy
of American involvement in the League of Nations, there was
congressional assert iveness.
The trauma of the depression led to a new emphasis on the
executive branch which carried over into the World War II era and
continued the assertion of executive authority down to two very
important events that, in ny view, reversed the trend.
Philosophically there has always been a debate in our
society about the true nature of the federal system and the
extent of centralization of power in that system. Those
arguments were raised in the New Deal days of President Franklin
Roosevelt and often took the form of states* rights.
In the I960's we saw a confluence of several very important
forces: First, philosophical concern about the centralization of
power. Second, the Vietnam War, and third, Watergate, leading to
the resignation of a President. Vietnam War issues helped bring
about Watergate.
Watergate caused a significant erosion of Presidential
power, still a powerful office, it has yet to regain the
authority it possessed prior to the Vietnam war and the ensuing
debacle which led to the resignation of a President.
110
I recall my own days in the Congress in the l960's. There
was restlessness and anger by members of Congress about executive
authority and what we as members thought was arbitrariness or
even abuses of that authority. The favored whipping boy being
the Office of Management and Budget (0MB) .
Today, there is much discussion about the power, authority
and the prestige of the Congress. Since the Watergate/Vietnam
experience there has been a rapid ascendancy of congressional
authority. I mention a quote to you from the Federalist Papers
by Madison, Number 48, where he complained of legislative
authority.
"The legislative department is everywhere extending the
sphere of its activity and drawing all power into its
impetuous vortex."
Your panel is really dealing with questions of power. Me
have a system that is structured on the diffusion of power,
safeguarded by checks and balances, and the inherent authority of
one branch to negate or checkmate the actions of another branch.
Power is something that is not easily surrendered. Today,
there is much discussion of arbitrary use of power by the
Congress. There are charges of fiefdoms by individuals and
committees— fief doms that occur either by subject-matter
jurisdiction or by control of t.ne purse. Such changes are not
6
Ill
new, ^ey are as old aa the Republic. As I observed, power is
not easily surrendered, and rarely is it willingly surrendered.
Its loss is usually associated with major trauma, war, depression
or revolution.
Today there is considerable public unrest about tire
Congress. There is a lack of the confidence in the Congress by
the public that is needed to effectively govern. I aa of the
view that the emphasis on term limitations and the widening
appeal of that approach is a form of trauma, a type of public
revolution. It is an expression of frustration and even rage
that demands some type of significant or drastic change. There
are reasons for these expressions of outrage.
I have referred to the growth of executive power and
congressional reaction which seized on the events of the Vietnam
War and the Watergate experience to nake the pendulun swing
toward Congressional ascendancy. The Congress in the 50 's and
60 's lacked the information resources of the executive branch, it
did not have the in-depth staffs. Much of this has changed. The
t
112
watershed year was 1974 with the election of the Ccngrese
following the Watergate fiasco and resignation of the President.
Many of the changes which would be implemented I ac sure
were very helpful. However, I think there is some question as to
whether all of them were as effective or as useful as
congressional sponsors had hoped. You are well aware of these
broad, sweeping changes: the Budget Impoundment Control Act,
creation of the Office of Technology Assessment, changes in the
seniority system in the House of Representatives, the earlier
adoption of the War Powers Act. There was other legislation that
severely restricted certain intelligence activities, particularly
covert operations; legislation that related to access to
information, legislation that related to opening up the
governmental process and accessibility to committee deliberations
that theretofore were severely limited. (As an aside I would
point out that the Constitution was a product of in-camera
sessions in Philadelphia.)
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Having 6«rvsd in th« legislative branch for eight years and
in the executive branch for over twelve yeare, I am of the view
that what members of Congress really want to do is to shape
policy. In that regard, I think members do not fully accept that
we are an executive form of government as opposed to a
parliamentary form of government. I believe that in our system
much of what is done in the policy field the executive branch
proposes and the Congress disposes; the executive branch acts and
the Congress reacts. There may be ways to give Congress a policy
making role that would be helpful, i will make several
suggestions.
I think on* of the most important things the committee cculd
do would be to (1) define the congressional role, and (2) in the
definition, perhaps broaden it xn a way that Congress cculd
participate more actively in the policymaking processes of
government. I am of the view Congress needs to be more involved
in the planning and development of policy and less involved in
the execution, with the latter being liavited to an oversight role
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as oppOBed to detailed Bsanagenont. Trua, the adoption of broad
legislative programs — whether in the field o£ economics, defense,
health, or social welfare — involve enactsencs of broad policy
guidelines. However, in the executive branch in carrying out
those broad policy guidelines established by Congress, there is a
term that you've heard many tines, that Congress is
"nicronanaging" the process. I^icronanagement is a difficult word
to define and has varying meanings. There are many instances
where it can be shown that the executive branch did not execute
programs effectively; consequently, a certain level of guidance
and oversight is necessary.
Leaislativ*. r,r jrfloc^k
I an of the view that much of the gridlock that we are
experiencing in our government is a gridlock to which Congress is
a major contributor. Legislative gridlock occurs because of
differences within and between the two Houses; differences on
issues between authorization and appropriations; differences over
jurisdictional interests as to subject matter in both the House
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and the Senate. At times there are differences that arise
because partisan considerations further exacerbate the situation,
but partisanship is not the sole factor, or invariably the
primary one.
There is also Executive gridlock, and I will discuss that
further.
Legislative-Executive Relations
The Legislative-Executive relationship, I believe, is
becoming more adversarial. The hearing process can become a
confrontational experience. I an not advocating an aliandcnment
of the hearing process. It is essential, but I think it would be
helpful if this committee would recognize a need to make such
formal relationships less adversar3.al and confrontational. This
is why I urge you to focus on ways through the reforsi process
there be devised a new approach to developing national policy. Z
am of the view that there needs to be a greater interchange
between the executive ajid the legislative branch through
consultation and meetings and planning sessions prior to the
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introduction of legislation. I would advocate that this
consultation or interchange not be limited along partisan lines.
It is important to have partisan consensus on programs, but it is
also very important to have a broader involvement of aembers of
both Houses from both parties in the planning and development
process.
Conaresa - A Full Time Job
one of the areas that I would raise with you, and I
recognize that you nay not be able to make these kinds of changes
in the system. One of the major developments that has occurred
in the Congress is the fact that it has become a full-tine job.
I believe this is having significant impacts on what the Congress
is, how it operates, and what it does or does not do.
Historical examination of what the fraaers' intent was
indicates they did not envision that being a federal legislator
would be a full-time job. It was thought that it would be a
P^rZ-tiuB job, indeed, getting a two-year term for House members
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was significant, inasmuch as many of the state legislatures were
only elected for a period of one year.
once being a legislator cecomes a full-time job, it
introduces other considerations. (1) An individual becomes
dependent upon reelection in order to keep the job. if the
legislator is not of independent wealth, there is a built-in
insecurity. With the expense of modern-day elections,
significant amounts of time and effort must be given by the
member to raising funds and devoting efforts to reelection.
There is an impact, which each of you knows, on the families
of members once this becomes a full-time job. The debate occurs
with many members, as it did with me, as to whether you move your
family from your congressional district to the Washington
environs. If you do move them, this creates problems for the
members when they go back home because they must leave their
family to visit the congressional district. This raises, in
turn, questions about whether the faunily becomes most closely
associated with the Washington environs than with the
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congressional district. A member tlnds himself pulled between
family commitiaents and congressional responsibilities.
I believe that the Coninittee should look seriously at the
recommendation of adjournment dates that are established by law
that would cause the Congress to adjourn at least one of its
sessions early, for example, not later than the thirty-first of
July. Today's sessions have a lot of down time. I do not think
there is an efficient use of time by the Congress. There are
times of great inactivity and inefficiencies associated with the
fact that there is delay in the legislative process.
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Congressional Government
I aa of the view, and you may not agree, there are sever*
limitations in our federal system for Congress to govern. The
day to day task of running or adminisrering the governuent an
executive function.
My views were shaped on this in 1974 when I was a counsellor
to the 3 8th President, President Ford. The chaos that was
associated with Watergate and the Presidential resignation was
exacerbated by a severe energy crisis arising out of the Arab oil
embargo in 1973. The embargo was a contributor to but not the
only reason for, a severe economic downturn, when a grievous
recession hit the Country in the fall of '74. There was a
landslide election in '74 with swollen majorities in the House
and Senate. In fact, in the House there were not enough
Republicans in number for President Ford to sustain his vetoes.
The ratio was 291 Democrats to 144 Republicans. Theoretically,
in the House the margin provided a veto-proof Congress, but it
did not work out that way. One of the first major efforts the
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Congress had to address was the energy crisis. This issue alone
demonstrated the inability of Congress to carry forward the
governing process. Notwithstanding the large Congressional
majorities, on the energy situation Congress ended up in gridlock
because energy questions are regional. They are not necessarily
partisan or political, they are economic. In considering energy
matters, there are significant jurisdictional conflicts between
the two Congressional Houses. All of these factors of
regionalism, economics, jurisdiction, and conflict between the
senate and the House really led to an impasse, and the Congress
was not able to come up with a consensus to develop an energy
program.
President Ford, who had embarked on a program whereby he
indicated there would be no new spending and that he would veto
any new spending programs with certain exceptions, was able to
use the Presidential veto, which is negative in nature, in an
affirmative way to further his own program.
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At this point I will list a nvmber of issues to which you
aay want to give furthar consideration:
Base Closures - K New Leaislative-Rvecutive Me-^Jiodcloov
One of the most intaresting and innovative approaches that
has been developed in the Department of Defense in handling a
difficult Congressional issue is the methodology associated with
base closures, it would evolve in about 1987, when Mr. Carlucci
was Secretary of Defense. I do not know who was the principal
proponent of the approach, whether it occurred in the Congress or
in the Department, but suffice it to say it was mutually agreed
upon. When faced with the reality of base reductions, past
experience indicated that to approach base closure on an
individual case issue basis usually would not be successful. The
reason v;as affected members had been able to frustrate the
process by forging Congressional alliances whereby they could
assert sufficient pressure to prevent a specific closure.
The current nethod is an all or nothing approach. It
requires the Congress to accept or reject the entire package.
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One base cannot be singled out. Consequently, it pits a great
majority of the legislative body against any single or small
concert of other members who have parochial interests. It is a
method that is used to get aroxind what I have referred to as the
FiefdoB Dimension.
I raise it for your consideration because of the
applicability of the methodology to ether issues. For example,
ending the production of certain weapons systems. However, it
nay have an application to other departments where the Congress
may feel that cither downsizing of the department, or
concentration of operations for efficiencies, would Oe in the
best interest of those departments or agencies, but which cannot
be accomplished because of strong parochial Congressional
interests.
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Executive ^riv^cy
I think that Congress needs to be more cognizant of the need
for a certain level of executive privacy for the effective
development and formulation of policy. Xn such deliberaticna, it
is essential that difference of views be surfaced in the staffing
process. To be effective, a degree of confidentiality of these
views is necessary. The Congress rust be careful m how they
require production of staffing papers for purposes of legislative
consideration in order that they do not disrupt and frustrate
policy fomulation.
I am aware that sometines when there has been a mistake
and mismanagenent , the insistence on security of executive
documents is advanced for the purpose of not revealing these
mistakes. However, I an of the view that certain guidelines
should be established by the Congress in order to distinguish
between legitimate executive privacy and self-serving nondisclosure.
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T.eoislatiiQn bv Label
Because of the vast nuaber of legislative proposals and
the methodology and capability of media for headline suasaaries
and media-bite and sound-bite presentations, there is a growing
trend whereby legislation is moved to adoption more by its title
without adequate consideration as to its substance.
I recall as freshman member 1 was on the subcommittee
which had responsibility to draft the Wilderness Bill that became
a hallmark law. This legislation had encountered strong
resistance from the committee chairman, a highly knowledgeable
and experienced legislator in matters that related to the
Department of the Interior and public lands. The principal
advocate of the legislation was a member of the Senate who had
enormous backing from public interest groups and the media for a
Wilderness Bill, when our committee chairman, who was on
friendly terms with the Senate sponsor, met and outlined to him
his reservations and concerns about the Bill, rhc response by the
sponsor was, "Wayne, I really don't give a damn what you do with
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the Bill so long as it's got the name Wilderness on it when it
comes out of committee . "
Because of concern about the proposed legislation by the
House Chairman, much effort wont into consideration of the bill
which beceime law; however, as a freshman member of Congress, I
never forgot some of the cynicism that accompanied its
sponsorship.
I'm sure you can cite many other exacples of legislation by
label; however, the difficulties that arise fron this approach
oftentimes can produce legislation that is hastily conceived.
Its full impact is not appreciated by the total Congress inasmuch
as members do become subject matter specialists and are not fully
avare and understand the complexities of important issues outside
their area of legislative expertise.
What I'm suggesting is that the Congress establish its
own cost benefit analysis capability. There are many sound
management techniques used in industry', and particularly in
procurement programs of the Department of Defense, which use
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program analysis and evaluation 'to measure cos'ts, risk, economic
benefits versus economic impacts, and orher tradeoffs. The
comaittee might wish to suggest consideration of such an approach
to legislation. This capability would operate independently from
the jurisdictional committees tut would be available to assist
then.
As the Congress moves into more technical fields it is
important that legislative enactments be based on information
drawn from sound scientific research. There is growing concern
among a number of scientists this has not always been the case.
The Appointment Process
These comments are not directed to any specific
administration, but rather apply to all the administrations for
the past 30 years. The observation is that we are requiring far
too long to fill key appointed positions in the federal system.
I am referring both to posts that require confirmation and senior
executive posts filled tiy the President, but not requiJ^ir»<?
confirmation .
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The personnel selection process in the White House and
many departments of government take too long. When confirmation
is required, the time is even greater, to have a more effective
government, the congress needs to address executive personnel
selection and ways to expedite the confirmation process.
Many of the day-to-day decisions of the Executive
branch occur at the Assistant Secretary and Deputy Assistant
Secretary levels. Not having these positions filled contributes
to inefficiency, non- responsive and ineffective government.
P.ple Of Congressional Staffs
Congressional staff size has nearly tripled in the last
three decades. There has been considerable discussion about the
role that they play in the legislative process; the size of
staffs; V7hether members are becoming isolated or insulated; the
authority passed to key staff members.
We have been very fortunate to have had on Capitol Hill
dedicated msn and women who have devoted lifetime careers to
congressional staff service. They have made an enormous
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contribution to the effectivansss of th« federal syetem. in many
instances, these individuals have become experts in their own
right on complex subjects; however, have not usually received the
recognition they deserve for their contributions to public life.
The staff function breaks into two major categories with
different duties, i.e., congressional office staff and cosimittee
staffs. In most offices there is likely to be considerable
inter-staff action between these two staff components.
With the growth and complexity of the legislative program,
population increase and greater constituent duties, the expansion
and power of staffs have been inevitable. Accessibility to
members, not only by constituents but by key people in the
executive branch is essential.
My own perception is that in recent years, it has become
increasingly difficult to meet v.'ith members personally;
consequently there is greater delegation to staff members to
conduct neetings. out of this arises certain staff procedures
and protocol, with the staff nembera assuming a mere important
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role in th« legislative process. The danger of misunderstanding
and mistaken conmunication increases when intermediaries are too
freguently sxibstituted by either executive or legislative
leaders.
Because of the specialization that is now associated with
congressional service and multiple committee assignments,
particularly in the Senate, it is understandable that there be
greater delegation to staff. It is also should be noted thar
each congressional office takes on its own managenent style and
freguently the inaccessibility of members is really manifestation
of a management style rather than the assertion of staff
authority.
Nevertheless, there needs to be a better definition of staff
roles and functions to ensure that the representative aspect of
legislative service continues to be a corner stone.
I would recommend to the committee that one of the areas
that you consider would be staff roles and functions. I would
further suggest that the Congress establish an ad hoc cotamittee
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on congressional staffing. This would be composad of carefully
selected staff aenbers who have distinguished theioselves for
their public service and who have carried out their duties in an
exemplary fashion. I believe that such a cosunittee working with
a congressional comiQittee should establish certain guidelines and
policies that relate to the conduct of staff members and their
proper role and function. I would also suggest that annually
there be a program of Congressional recognition of outstanding
staff members who, by their public service and pursuit of
excellence, set an exampla for ocher staffers to emulate.
Post Congressional Employment
In recent years, there has been growing discussion about
employment of members after leaving the Congress and particularly
the question of conflicts. Perhaps this is a subject the
coTomittee will consider. Although I recognize the problem, my
only comment would be to proceed cautiously as to how limitations
are applied so as not to discourage those who seek legislative
office. I think there is some danger that post congressional
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employment restrictions which are not carefully drafted may
raise, indirectly, constitutional issues as to cjualif ications for
election which today are limited to citizenship, residency and
age.
Two Audits
I would suggest to the Conaittee that one of your tasks
should be accomplishing two audits or inventories. Perhaps this
is something you have done or contemplate doing.
The first audit would be inventorying all of current
committees of the Congress and all of their subcommittees. As a
part of this survey, there should be set forth their
jurisdictions, over which departments or agencies of the federal
government they exercise oversight or with which they have a
legislative relationship. This would set forth the legislation
that they consider and what hearings they have conducted with
federal agencies and on what issues. Such an inventory would
also indicate where there has been overlap with another committee
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and duplication of hearings on similar issues where such has
occurred .
I believe such a sur\'ey will be both revealing and helpful
in addressing your task. T suspect you will conclude there are
too many conmittees and subcommittees for an effective
legislative process.
The second audit would be by way of follow-up on specific
legislation that has been adopted within the last two decades
with impact on the Ejcecutive Branch and the manner in which it
carries out its duties. It would first establish an agreed upon
group of statutes; and the Executive Branch then would be tasked
to respond to you as to the application of these statutes, their
effectiveness and what modifications, if any, the executive
departments and agencies would make in the statutes that would
contribute to efficiency in government -
I believe the Congress would find most helpful frank
expressions from the Executive Branch as to the statutory
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impacts; whether the enactments have been effective and what has
been the requirements as to additional workload and costs.
Candidate legislation that I would suggest would include
Budget Impound Control Act, legislation relating to the
acquisition of computers, the War Powers Act, Freedom of
Information, the Inspector General's statutes and Competition in
Contracting. There may be others that you might wish to add.
I thinX it is important for congress, from the standpoint of
efficiency in government, to review consequences and impacts of
legislation adopted that affects in a significant way the
operation of the Executive Branch. Are these measures working as
well as intended? if not, what needs to be done to improve
then?
The first rule of medicine is "do no harm.** My years in the
Executive Branch cause me to believe that rule is applicable to
the Congress when considering proposed legislation.
Policy initi^tJvflR
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I am of the view that Congress has not developed adequately
its policy initiative capabilities based on its Article I,
Section 8 powers. It has evolved over the years that policy
initiativee for the national government emanate more from the
Executive Branch. This no doubt srems from the authorities given
to the President in Airticle II of the Constitution whereby the
Chief Executive shall make recommendations for consideration by
the Congress of certain measures considered by the President to
be in the national interest. Out of this authority has evolved
the "bully-pulpit" role of the President described by President
Teddy Roosevelt. The policy initiatives of the President are
usually contained in the broad charter of purposes of the
adninistration in the State of the Union message.
What I am suggesting is not an abandonment of this role by
the President, but rather an expansion of the Congressional role
in the field of national policy — a grand strategy that would
overlay so-to-speak and corcplement the President's endeavors.
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The Chiaf Executive would advance propoeals to inplenent tba
Congressional plan. These proposals would not be limited to the
national plan but could also contain proposals for changes in
that plan.
I believe the Congress should consider a strategic plan for
the nation. Such a plan would be near-term, mid-tern and long-
term. Near-term would be 5-10 years, nid term would be 10-20
years and long-term would be 20-50 years.
The national plan would be composed of four major areas:
1. National Security and Foreign Affairs;
2. Social Services, which would include education, health,
social security and welfare;
3. Environment; and
4. Financial, i.e., budget, revenues, fiscal and monetary
matters .
Joint committees of the House and Senate would be formed for
each subject area, however, they would not be permanent
committees. In structuring the Congressional strategic plan, the
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cojnBitt«« would draw heavily not only on Congressional resourc««
but, to a substantial degree, also on executive resources. The
aost senior officers of the Executive Branch would consult with
and provide inputs to the joint commirtees .
The report of each of the joint committees would b submitted
to the CongrsBs for their consideration. It is not anticipated
that the Plan would have the force of law, rather it would be a
broad statement of national goals and policies as to where we
want this country to be and go in the next century.
As a statement of strategic policy, it would be guidance to
the Executive Branch that reflects through the Congress the will
of the American people. After submission of their reports the
joint conmitteea would no longer be operative but would be
reconstituted every four years if the Congress chose.
In some respects, the strategic plan would not be unlike the
platforms of the national parties; in fact, 1 would expect that
the platforms and their planks would be reflected in the joint
committee effort.
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The y«ar 2000 affords the Congress a unique b*nchmarJc to
develop a long-range plan for the Nation, it marks not only the
end of a century but the beginning of a new tnillennium.
CSIS study
Shortly after I left the Department of Defense, I was asKed
by Dr. David Abshire, president of the Center for strategic and
International Studies, if I would head up a study group for CSIS
to consider congressional Defense Relations. A copy of the
report of this study group is attached. I might add that its
membership represented a cross*-section of people with experience
on Capitol Hill including key staff people and political
scientists. A valuable member was fomer Congressman Don Fuqua
who had been chairman of the House Committee on Science and
Technology. Congressman Fuqua and I were both elected to the
88th Congress in 1962.
Although the focus of the study was the Department of
Defense, it was apparent that many of the observations on
congressional relations applied across the spectrum of the
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Escecu^ive Branch and were not singularly relared t,o the
Department of Defense. In fact, it would not be possible to
institute a number of the reforms suggested and limit thea only
to Defense. I have drawn on this report and aapliflsd some of
the points that are contained in it. I invite your review of the
study for other suggestions for reform, particularly bi-annual
budgeting.
Office of Technology Assessment
I would particularly cononend to the Connaittee the work of
the Office of Technology Assessment. I cite for example a report
that the OTA prepared several years ago on Defense management and
Congressional relations. This is an excellent report and I think
it would be especially useful in your Committee deliberations. I
mentioned that we drew on this report heavily in the Defense
Management Review Process which was instituted by President Bush
and Secretary Cheney in 1989. The OTA Report cites not only the
complexity of issues that the Congress must address but points
out jurisdictional problems involving committees, as well as
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ov«rriding social issues which impact on fedaral legislation as a
matter of public policy. An example of this is the Snail
Business Program, which when considered solely on the basis of
economics would not be justifiable but on the basis of social
policy to encourage entrepreneur ship is both a desirable and
effective program.
Any student of Congressional reform needs to study this
report which is entitled Holding the Edge: Maintaining the
Defense Technology Bage and is available through the Government
Printing Office or from the office of Technology Assessment.
Breakdown of Party Discipline
The Committee is no doubt aware of the observarion that one
reason the Congress is not as effective as it was in former years
can be attributed to the breakdown of party discipline. I
recognize the difficulties of addressing this issue in any reform
effort. However, I cite it because key public figures have made
reference to it. I know from many conversations with President
Ford, who served c.s the Minority Leader of the House, that he
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holds this view and frequently refers to it in response to
questions as to improving Congress. I believe it is also a view
that has been espoused by former speaker of the House Carl
Albert.
I cite this view because the leaders of the respective
parties in the House and Senate need to give it further
consideration internally in their organizations in order to be
more effective.
Line Item Veto
I recommend to the Cononittee consideration of the Line Item
Veto, This authority in the President, 1 believe, would be a
great help in introducing discipline and spending restraints into
the Government.
As one who has been a federal administrator, I can cite
examples of pet projects which the Department of Defense would
like to terminate but cannot because of powerful Congressional
sponsorship. This sponsorship is tied into constituent
representation, and the result can be the continued procurenent
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of weapon systems or conducting other programs which the
Department does not need but continues to pursue because of
Congressional pressure.
There are also examples of when the congressional sponsor
leaves the Congress, the prograjns are inocediately terminated.
If the President has Line Item Veto authority, it means
there would be greater restraint by the Congress in sponsoring
these programs at the outset. The capability to veto, even
though it was not exercised, would in my view have a salutary
benefit.
Term Lengths and Term Limits
When I was a member of the House, one of the questions that
r was most frequently asked was whether I felt that the length of
terms of House members should be changed from two to four years.
I strongly opposed any such change, the reason being that I
believe the mid-term elections during a Presidential term afford
a valuable national referend^im on the current policies of any
administration. The results of raid-tsrm elections can cause an
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administration to alter its course and change its programs bas«d
on the November results. This important public expression would
not occur if House members had terms that were co-terminus with
that of the President.
I did suggest to my constituency, however, and still hold
the view, that consideration night be given to a term of three
years for House members, with the House divided into three
classes and one-third standing for election every three years.
This would mean that one-third of the House would stand for
elections in off, or odd nximbered years, which would give an
additional opportunity for reflecting constituent views in years
in which there was no federal election.
Reluctantly, I have come to the view to support the
constitutional limitation on service of nenbers of the House and
Senate to a maximum of 12 years. As I have indicated earlier, I
believe the public reaction to the performance of our national
govemrcent, and particularly Congress, has reached such
proportions that serious consideration of such an amendment is
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warranted. l believe the only way that it can be averted is for
the Congress to take significant and severe measures to reform
itself and thereby become more effective and more responsive. As
I have outlined earlier in this statement, there have been such
systemic changes in the nature of the job requiring its full time
pursuit that 12 years without a break in service is a sufficient
time to serve.
This observation reflects on the seriousness of the task
that you have. I predict that if you are not able to come up
with a program of significant reform which makes the Congress
more responsive to national needs and more effective in
addressing those needs, and if such recommendations are not
adopted by the Congress, then the term limitation amendment will
surely pass.
1 made reference to legislative gridlock but gridlock is not
exclusive to the Legislative Branch. It exists in the Executive
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Branch and I believe this Conunittee should address It. I invite
your consideration to how staffing occurs inter-departnentally in
the Executive Branch- It cam be a bureaucratic nightmare trying
to establish a consensus on legislative proposals sponsored by a
department of government. Let ae give you an example; in 1986,
the Paolcard Commission, in their recommendations, pointed out the
vital need of Congressional reform on matters that were related
principally to defense. However, the impact would be broader
than the Department of Defense. There were recommendations in
the field of acquisition as to both the Federal Acquisition
Regulations (FAR) and Defense Acquisition Regulations (DAR) .
Seven years later there has really been no significant change to
the FAR and DAR.
In reference to the Packard Commission recommendations for
legislation embodying procurement reform for the Department of
Defense, several years later, no such legislation had been
referred to the Congress for its consideration. This is not
because the Department of Defense ignored the Congress lona.1
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mandate, but it was not able to get the necessary consensus from
the various agencies of government with whom it had to be
staffed.
The Committee is well aware of how proposed bills move
through the legislative process. I suggest that you examine how
proposed legislation moves through the Executive Branch. It is a
cumbersome, difficult process. It is directed by 0MB, which is
charged with the responsibility of getting sign-offs on proposed
legislation before it goes to the Hill. This is an
extraordinarily difficult process and frequently other
departments and agencies can frustrate and block necessary
legislation. At other times, in order to get consensus, the
Congress receives legislation that reflects the lowest comnon
denominator and may not be fully responsive to the need.
What happens is a clash of interests based on j'jrisdiction,
turf and embedded programs that stall change. To further
complicate the tas)c of achieving reform as you will recognize,
the opposition sometimes voiced by certain departments to
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proposad legislat.lon is but-tressed and reinforced by
Congressional Committee interests of a patron committee. I can
tell you from experience, that an opposing department, will rally
or cite Congressional interests in support of their position and
consequently, in some instances, stall or defeat the proposed
changes .
I cannot emphasize how important I feel it is that you
examine the Executive staffing process. I suggest you also look
at linkages between staffs of executive agencies and committees
when proposed legislation is at issue. To make this point, I
invite you to review the numerous reform efforts and studies that
have been initiated in the Executive Branch to try and remedy the
process in the procurenent field alone. Notwithstanding enormous
work and effort, they usually have fallen short of the intended
goal inasmuch as they could not develop the consensus in the
Executive Branch to pursue them en Capitol Hill.
Procurement reform has been for years the Pentagon's Rock
of Sisyphus. As we zneet there are itany dedicated and able people
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in the Depai"ta«nt of Dafense worJcing countless hours in yet
another refom effo:rt by chat deparraenc. They are tr-/ing to
roll the rock up the hill again.
Where there are merely staff differences between
departments, the issue can ultimately fce escalated to the
President to resolve, a tiae-consuramq and difficult process.
Reform legislation will likely require amendment cr repeal
of existing laws; consequently only Congress can break this
gridlock.
148
Lobbying and Special Intgrp?tg
Ttic Congress is currently adtlresslng issues of r.ainpaign
reform and iQbljylng. I will ximit »y comiB»n-t« to the latter only
ae i't relate* to the extension of lobby rocralaticriM to the
executive Branch.
in reference "o tr.is isaue, T urga caution and t-.horcugh
oonaider/»i.icn. The ^ues'^-inrs to be asked ac» (ij what is tJie
nfteflr (3) how can it beet be act: (^) what will be t.he iapaots on
the Executive branch; wil3 It contribute co greater effectivi^ness
and better governaiuirt, or more governawnt and greater
IneffoctivenaMs; or (4) will It make things ear.ler for yo'or
constituents, or discourage then by mere bureaucracy?
The cuxrent cta-sutc, adopt.«d several yearta 'njo, which
require!* reporting oi: contacts "to executive agcmeica it> aTJsiguouc
;*nd unocrtain in Its application, 'i'herc are di ffarencca af view
aa to its meaning, and iti the 0MB divergenr. cpiniona intef-pretlng
at. laast one key provision of the legislation.
44
149
Aa£h orizai icjp vs. Approprlafcionn
TUlB coaaaitte* has already Ti?celv«a a number o£ cointencs on
tho probl«^m whloh occurs vhen there is *tn appropriation by T:n2
Appropriations Committee withcjut authcrization. i can only
oonflcm tn» difficultiHs whlcb this poses tor the senior
l««darettip in thn Kxacutive Br«ncn. It ia a riilemma that
Conqreas must resolve. The Conqress must establish thp ruicc.
It cjould prohibit the practice; it aight pernil the process, nr
limit it Lo exceptions s«t forth by the legislative b«>dy.
IIow*w»r, to ignoie the lecue only aggravates <i rilfticult
situation a ad untairly imposes a Hobsan's choise on the iaceoutive
Oraiich .
3gn/trat^.on nf P-jwpr^
T believe th« rpai iscue whiih iinaoriies LhR demand for
reforiB is a more eyateitic one. It is the separation of powerc .
This is the iosue T ■^uggect you give serious cotisidaration.
Of the Uhree brancnes, the t,cgislativp Is the most powerrul.
It is thM one, unless t exercises restraint, that can encro/ich
45
150
on the other branches. Yet, it io also bhA ono tha^ can bast
redress the balsunce. in the lost two decades, I hPll«v« that
delicate balance of power, vhlch io the genius of our syst.en, ie
being ripped to tliH Leg^Biative Brflneh in such a way to be
counter productive and against the effective operation of the
reiJaral Systea. Tt is not being -ione dQiiberaLaiy or with
nalice, bui. I an cure viLh well-meaning iiitrpose; neverthRless in
many instajioos the €>r.4c doaired arp not bein? achieved.
I urge the comnittee i.o stuay the fivp articles of Madieon
in ttf. Faderaliat Papprs (;7 through 51} wherein hp discusses thtt
separation of powarc m strijrturinq our go>^emment. I
particularly ooBunend to you number am in which he. quotes
Jefferson un legislative {.ower, and 31 where ne speaks to the
natuTH and purpose of cjoverrerent , and the necsbsity to cafeguavd
;*gainet the riViuse o± power from whichever hranch. He remln^.s the
reader "t.hat if nen wtra angels no gnvernnent would be
iiMc-essary . "
46
151
The national aovcment to Unit terns i« a cittsen «rfort to
redrsAii U3o balancttii.
T ask you to oonaidei the anumoration of povcra qive/i to tn*
CongrBss ac ect out in Article I <a of tne Constitution. Compare
it to the Article il powers tif ttte ohiaf exenutivo. The
Preaidiftiit Is an aqent fnr tbe execution of governiiitintial
funr.tione. Clearly, the Legislative Branch ii^ the heart of
governmental power. Thi* congrcaa is wareiy an agent i.if tAe
people in whoa tJi« real power aC tha nation Ls vested.
It apiiears aore frequently the CoiKjrsss is trying to manage
the Executive Dram-Ji by legislation. Management is not the joh
or congress. The real ch^llange you face la not ao nwii curbing
pcwei- but ensuring the proper us** oj power.
What happens in this country has f^r greater weaning than
jusL Aiterica. What has occurred here in the l/^st 200 years has
Inpacted on the whole planet, what we do, or fail to do, hac
aeaniny well beyond our toundarias and our tiaes.
47
152
Congrcsii is not only 1 h« pre-eminent branch but its £unotion
is exclusive and uuique. Our nat.ional strength Is fioth our
divvrsity, i*nd tho nultipllcity of our Intorecta. TliiR «tr«nqth
can on\y bo translAteci int:o a national purpos* by a Conqres& ttiat
is truly reprnsantative of our people. "H©r«, the people govam"
— thin fanoua quote sratas the go/il of your eniiej^vcrs.
48
153
STATEMENT OF DICK THORNBURGH
BEFORE
THE JOINT COMMITTEE ON THE ORGANIZATION OF CONGRESS
JUNE 22, 1993
154
When I first came to Washington in 1975, 1 came as one fi-esh fi-om service as a
prosecutor, having served the previous six years as United States Attorney for the
Western District of Pennsylvania. When President Gerald Ford asked me to take on the
responsibility of managing the Justice Department's Criminal Division as an Assistant
Attorney General, it was in the wake of the Watergate scandals. The Department, as the
Committee knows, had been a prime focal point during that calamitous period in our
Nation's history, and, under the stewardship of Attorney General Edward Levi, it was just
slowly regaining its stature.
The experience of coming to Washington during that tense time helped foster in me a
strong belief that nations and communities cannot effectively function but for the reasoned
application of the Rule of Law. It was a theme I tried to expand, with varying degrees of
success, during my three year tenure as Attorney General. It is also the theme on which I
would like to focus the thrust of my remarks today.
Upon my arrival in Washington, I came to appreciate, for the first time, the high
level of tension between the Legislative and the Executive Branches, highlighted in
Watergate and expanded in earnest during the Presidential election cycle of 1976. These
tensions were destined to be refined into an art form, especially whenever either house of
Congress is controlled by a political party different fi-om the one which occupies the White
House. In time, reasonable constitutional oversight authority was extended by
congressional committees to include examination of ongoing criminal investigations and
intricate lawyer-client relationships within the Executive Branch which had previously
been considered off limits. By the same token. Executive Branch purists whose agenda
included the dismantling of congressional oversight powers engendered widespread
distrust in the media and on Capitol Hill. Failure on the part of any cabinet official, even in
good faith, to cooperate with congressional requests for information, especially when that
155
information was controversial and preserved in document form, inevitably ran the very real
risk of being characterized as a "cover-up". Since both branches of government generally
have a well-reasoned basis for their positions, and since at some uncertain point a
constitutional standard must intervene, I thiiik this forum is an appropriate one in which to
consider some means of impartial resolution of disputes arising from such requests.
The issues are not difficult to understand. They are just difficult to resolve. Our
failure to create some effective vehicle for resolution only guarantees that future
misunderstandings, to the ultimate detriment of the public good, will be inevitable. How
many more interbranch collisions, such as the well-publicized dispute between the
Congress and former EPA Administrator Anne Gorsuch in 1982-83, will be necessary
before we take steps to fashion a process that leads to reasoned, rational results? How
many more times will the previously untarnished reputations of dedicated public servants,
such as Theodore B. Olson, former Assistant Attorney General for the Department's
Office of Legal Counsel during the Gorsuch controversy, be subjected to years of an
independent counsel's criminal investigation, at the personal cost of hundreds of thousands
of dollars, to no avail? Now is an appropriate time for those of us with a background in
the Executive Branch to join with you in the Legislative Branch to examine ourselves and
our practices, Mr. Chairman, as well as the consequences of our actions on the future of
our ability to govern effectively and represent the interests of the People instead of solely
our own viewpoints.
I would like to take a moment for a slight diversion. Struggles between the
Executive and the Legislative Branches are often couched in terms of constitutional issues
or institutional prerogatives. From the perspective of professional prosecutors, this
emphasis overlooks a very important point. Although prosecutors are oflen portrayed as
aggressive to a fault, every prosecutor worth his or her salt is alert to the fact that, outside
156
of waging war, we wield one of the Executive Branch's most formidable powers: the
power to criminally indict.
Prosecutors often encounter targets of investigations who are innocent of any
criminal charge but who, by virtue of circumstance or association, find themselves within
the scope of criminal investigations. In the course of those investigations, they deserve and
are entitled to privacy and confidentiality. As we are all aware, the mere mention of
someone's name in connection with a criminal investigation can leave a mark which may
ruin careers and never fully disappear.
It is for these reasons, primarily, that the Justice Department, during my tenure and
before, fought so hard against the unauthorized disclosure of information relating to
ongoing investigations. To the extent that the Department fails in adhering to its own
rules, it should be held accountable. To the extent that we have battled with Congress in
this context, it is important for the Committee to understand why.
Mr. Chairman, I commend to your attention a July, 1990, Report of the
Administrative Conference of the United States, in which this issue is discus$ed in some
detail. The principal recommendation of that Report, which is worth examining, is the
creation of what it called "a new modus vivendi to govern information disputes." Under
this agreement, as envisioned by the Administrative Conference (citing 1987 and 1988
American Bar Association studies), the new process would have both a procedural and a
substantive component. The substantive component would be the potential for a
declaratory judgment in cases in which resolution is otherwise impossible. The procedural
element would be a written understanding between the branches in which the specific
interests of each branch would be clearly delineated, a mutual commitment expressed to
invoke them in specific terms in the event of a dispute, and "a commitment to explore in
157
negotiation how the interests of each branch would be advanced or compromised in the
particular dispute by the use of various compromise strategies attempted in the past."
With your permission, I would like to submit a copy of the proposal as a part of
the Record. I should also add that I have taken the liberty of writing to Brian V. Griffin,
Chairman of the Conference, to request that he undertake to re-examine this issue with an
eye to fashioning a specific statutory means, more substantial than that envisioned by the
1990 study, which will force closure in cases in which there can be no negotiated
solution.
As is the case in many such academic exercises, solutions like those recommended in
1990 by the Administrative Conference are guided by logic and reason. The political
climate in which such controversies arise, however, is anything but a genteel gathering of
thoughtful intellectuals. It is, instead, too often a battlefield of conflicting interests and
political agendas, in which the ability of one side to paint the other in as unfavorable a
light as possible seems to command priority. On one side is the President and his Attorney
General, and on the other various members of the Leadership of the Senate or House, with
the prospect of the uncooperative Executive Branch official being held in Contempt of
Congress at the ready. Accusations flow fi^om both sides, and the Executive, more so
perhaps than the Legislative, is often unable, because of the confidentiality of the
information at issue, to adequately respond to charges bandied about in the press and on
the floor of either body.
The only viable recourse, in my view, is some sort of statute which places
jurisdiction in the Federal District Court for the District of Columbia, or a three-judge
panel of either the Court of Appeals for the District of Columbia Circuit or the Federal
Circuit, to resolve such disagreements expeditiously. This can be done by vesting in the
158
court the authority to appoint a Special Master for purposes of mediating a resolution
between the warring parties, taking into consideration on the one hand the interests of the
Executive Branch for confidentiality, where Constitutionally appropriate, and on the other
the need for congressional entities to have access to certain information in pursuit of their
legislative responsibilities. During my tenure as Attorney General, we discussed the
creation of such a statute to provide for the resolution of future disagreements, but,
unfortunately, the political climate never facilitated the submission of any final proposal.
Now, I believe, is the best time to move forward. Without a specific statute, or
remedy, I fear the confi-ontational tactics of the past will continue. Moreover, the absence
of a specific statute will enable courts to continue to dodge what they sometimes view as a
political debate between the two branches. The availability of a judicial forum in which to
obtain an immediate review of the competing interests of each branch of government
might well contribute positively to a more deliberate, reasoned resolution of disputes,
enabling cooler heads, more often, to prevail and causing a reduction in the historically
confi-ontational tone of the political rhetoric expended in such disputes. Only with the
adoption of such a statute will political gamesmanship be removed fi-om what essentially is
a tug of war between competing constitutional constituencies.
Mr. Chairman, I urge the Committee to seriously consider this proposal. As much as
any other single factor you might review during the course of your deliberations, a
recommendation fi-om this body that a statute be adopted could pave the way for the
establishment of constitutional parameters governing interbranch disputes over access to
information and documents. More important, perhaps, it could go a long way toward
reducing the prospect for this very damaging form of "gridlock". In so doing, it would also
constitute a small step toward civilizing political debate in this arena and perhaps abating.
159
just a little bit, the sense afoot in America that those in Washington care more about short
term political victories than about the important business of governing.
I will be happy to answer any questions you might have.
160
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
21 20 L STREET, NW. SUITE 500
WASHINGTON. DC. 20037
(202) 254-7020
1 C.F.R P05.90-7
OFFICE OF
THE CHAIRMAN
Recommendation 90-7
Administrative Responses to Congressional Demands for
Sensitive Information
Adopted December 18, 1990
The routine sharing of infonmatlon between congresslonaJ committees and administrative
agencies constitutes one of the most Important interactions between the political branches of
our national government. The process of exchanging Information affects the ability of the
executive and legislative branches to carry out their constitutionally assigned tasks. The
quality of Congress's legislative and oversight work often depends on agency information. The
control of the disclosure of sensitive information also affects the executive's ability to fulffU its
funclions.
The Constitution of the United Slates operates only loosely as a set of restraints on the
behavior of the political branches In disputes over information. Because it does not expressly
acknowledge a congressional entillement to information or an executive prerogative to
withhold Information, the Constitution provides less a set of clearly understood rules than a
framework within which each branch articulates its asserted right to demand or withhold
information.
The judicial view regarding disputes over sensitive information between the political
branches, as distilled from a very few opinions, respects elements of the views of both
branches. While several cases imply what the Supreme Court's view might be.' there is no
Supreme Court adjudication of any executive privilege dispute with Congress. Consequently,
there Is no opinion that resolves the principled contentions that such disputes involve.
By all accounts, most congressional demands for information are handled without
confrontation, and it Is clear that agencies generally respond to requests by providing
whatever Information Congress Is seeking. Moreover, the branches do have a strong and
continuing interest in the success of their overall relationship, despite an institutional
competitiveness that Is augmented when the two branches are controlled by different parties.
Nevertheless, serious contentious cases do arise, especially in areas of great concern to the
public, and Improved mechanisms for resolving such disputes would benefit both political
branches, as well as the courts, which shy away from Involvement in such cases.
' See U.S. V. Nixon. 418 U.S. 683 (1974) wlilch held thai the ex«:ullvc has a constltutlonaJly based privilege to
wltJihold Inrormatlon, the release of which would impede the performance of executive branch responsibilities. See
also McCrain v. Oaughcinv. 273 U.S. 135 (1927) which recognized a constitutionally implied power of congressional
investigation and said further that Congress need not have before tt a specific Icgisiabve purpose in order to trigger
lis investigative authority.
161
Page 2
An understanding of the several factors that may affect the outcome of particular
demands as well as the process by which a resolution is achieved Is required If Improvements
are to be recommended for resolving information disputes in a way that enables both
branches optimally to fulfUl their consUtuUonal functions. One major factor alTecting the
successful navlgaUon of a dispute is the perceived stakes or Interests of each branch. What
is at slake for Congress Is usually the performance of one of its primary functions. These
include routine oversight, the contemplaUon of possible legislaUon. the review of nominations
requiring the advice and consent of the Senate, or the Investigation of possible official
wrongdoing. The executive's desire to control the dissemination of information Is likely to
result also from a predictable set of concerns. These include protecting national defense and
foreign policy secrets, protecting trade secrets or confidential commercial or financial
information, protecting the candor of presidenUal communications or intrabranch policy
deliberations, preventing unwarranted invasions of personal privacy, whether of government
ofncials. employees, or private persons, and protecting the integrity of law enforcement
investigations and proceedings. In some cases, the executive may regard such Information as
sensitive, meaning that its disclosure could compromise the capacity of the executive branch
to discharge its constitutional or statutory responsibilities. Disputes over Information often
have a purely political basis as well. Congress may seek information in an effort to gain
particular political advantage; the executive may seek to withhold such information to cover
up mistakes.
The prospects for a nonconfrontatlonal resolution are good If the branches perceive that a
particular dispute boils down to a contest only between Congress's ability to fulfill one of its
primary missions and the executive's ability to protect one of the routine concerns mentioned,
rather than a fundamental readjustment In the Institutional power of each branch In relation
to the other. Accommodation Is possible In such a situation because several Intermediate
arrangements exist between complete disclosure or complete non-disclosure that allow for a
balance of the branches' competing interests.
Among the Intermediate arrangements available for settlement of a dispute are: (1) the
release of information by the executive In timed stages that allow it to conclude a law
enforcement investigation or policymaking process without premature scrutiny: (2) the
release of information under protective conditions ranging from Congress's promise to
maintain confidentiality to congressional Inspection of the materials requested while they
remain in executive custody: (3) the release of requested Information in expurgated or
redacted form; or (4) the release of the requested Information in the form of prepared
summaries.
Important, however, to the resolution of disputes along these lines is the formation of a
new operational process or arrangement. Under this arrangement, each branch would retain
the formal authority to assert In legal proceedings what it believes to be Its constitutional
prerogatives concerning the control of Information. At the same time, the arrangement would
contain agreements aimed at steering negotiations away from categorical questions of
prerogative and toward the pragmatic resolution of Immediate disputes. Toward that end. an
arrangement should specify at least those Interests in the control of the information that each
branch could Invoke in negotiations, a commitment to Invoke those Interests In highly specific
terms should disputes arise, and a commitment to explore in negotiation how the interests of
each branch would be advanced or harmed in the particular dispute by the use of various
compromise strategies attempted In the past.
The scope of the new arrangement should Include both executive and Independent
agencies. There Is nothing in the constitutional relationship—as distinguished from the
statutory relationship—between administrative agencies and either Congress or the President
that suggests that labeling an agency as executive or Independent yields greater or lesser
authority for the President to control agency information or greater or lesser authority for
162
Page 3
Congress to demand Information. In addition, the arguments for and against the sharing of
Information do not vary depending on the structure of the agency that holds the information.
Congress might also consider placing in one office the responsibility of coordinating the
negotiation of disputes with the executive over information. This would be akin to the
practice of the executive branch with respect to the Office of Legal Counsel at the Department
of Justice which stores information regarding the resolution of disputes and provides counsel
to agencies embroiled in disclosure disputes. At a minimum. Congress ought to more
regularly familiarize Its members with the information and counsel that the Office of Senate
Legal Counsel and the General Counsel to the Clerk of the House of Representatives can
provide to committees that are engaged in disputes over information. Congress should
consider alternative means for resolving particularly controversial cases in addition to the
current criminal contempt procedures. Alternatives could range from third-party mediation
to referral to other agencies or to less draconlan Judicial procedures.
RECOMMENDATION
1. Congress and the President should create an on-going process for negotiating the
conditions under which sensitive information^ in the agencies should be disclosed to or
withheld from Congress.
2. This operational arrangement should seek to achieve improved cooperation and
relations between the executive and Congress. Specifically, the executive should respect
Congress's legitimate legislative and oversight interests. Including the pressure of time and
the need to have Information immediately available. In return. Congress should respect the
executive's legitimate Interests Including, for example, protection of confidentiality In matters
pertaining to presidential communications, national security, civil and criminal law
enforcement, personal privacy and commercial confldentlality, and the free-flow of staff advice
that might be Inhibited by outside scrutiny of deliberative documents. However, both
branches should invoke these interests only in highly specfflc terms and should commit
themselves to explore in negotiation how the Interests of the branches could be reconciled.
In designing this arrangement. Congress and the executive should consider adding
mechanisms for dispute resolution beyond the negotiations and discussions that currently
take place.
3. Such an arrangement need not require legislation, but should be memorialized In
some fashion. Counsel of both Houses of Congress and the Office of Legal Counsel in the
Department of Justice should retain information concerning the Informal resolution of
disclosure disputes. Appropriate consideration should also be given to roles these Counsel
can play as sources of advice regarding disputes over sensitive Information.
4. In addiUon. Congress should consider establishing procedures for resolving Impasses
over congressional access to sensitive agency InformaUon which could be invoked to help
resolve exceptional cases as an alternative to contempt proceedings.^
5. No general disUnclion should be made between executive and Independent agencies for
the treatment of contested information for resolving disputes over sensitive InformaUon.
2 Sensitive informadon Is defined as InformaUon whose public disclosure could compromise the capacity of the
executive to discharge its constitutional or ^statutory responsibilities.
^An example worth consideration might be a declaratory Judgment procc-dure that could be invoked by Congress
or the agency after the exhaustion of informal mcans--such as negotiations between the congressional committee
leadership and the agency head-for resolving disputes In which some type of adjudication appears unavoidable. fTc
avoid constitutional problems, any action brought by an agency under this proposal should be died against the
congressional employee who served the subpoena In question.) In addition, particularly controversial cases might be
referred for resolution to In camera panels consisting of retired federal Judges, members of Congress, or executive
branch ofUclals. Other dispute might be avoided by designating an Issue of controversy for study by the General
Accounting Olllcc.
163
Conference
of the
United States
NEGOTIATING FOR KNOWLEDGE:
ADMINISTRATIVE RESPONSES TO
CONGRESSIONAL DEMANDS FOR INFORMATION
Peter M. Shane
Professor of Law
University of Iowa
Conference Consultant
(July 1990)
This report was prepared tor the consideration of the Administrative Conference of the United
States. The views expressed are those of the author, and do not necessarily reflect those of the
members of the Conference or rts committees except where formal Recommendations of the
Conference are cited.
164
ABOUT THE ADMINISTRATIVE CONFERENCE
The Administrative Conference of the United States is a
permanent, independent federal agency estobiished by the
Administrative Conference Act of 1964 (5 U.S.C. §§ 571-576). The
purpose of the Administrative Conference is to improve the
procedures of federal agencies so that the agencies may fairly
and expeditiously carry out their resportflbilities to protect private
rights and the public interest v/hile administering regulatory,
benefit, and other government programs. The Conference
provides a forum in which agency officials, private lowyers.
university professors, ond other experts in administrative lav*^ and
government can combine their experience and judgment in
cooperative efforts to study procedural problems and explore
solutions.
Administrative Conference of the United States
2120 L Street. N.W., Suite 500
Washington. D.C. 20037
165
I. THE BACKGROU>fD OF LEGAL UNCERTAINTV 2
n. NEGOTIATING OVER INFORMATION 9
A.The Pattern -- and Some Cases 9
1. Secretary of Commerce Rogers C. B. Morton. 1975:
Disclosure of Confidential Commercial Information 10
2. Secretary of Energy Charles Duncan, 1980:
Deliberative Documents on the Petroleum Import Fee 1 1
3. Secretary of the Interior James Watt. 198 1 -82:
Executive Privilege and Foreign Trade Policy 13
4. EPA Administrator Anne Gorsuch. 1982-83:
Executive Privilege and Civil Law Enforcement 17
5. FTC Commissioner Terry Calvani. 1988: 21
6. 1989 Oversight of the Internal Revenue Service 22
7. Intelligence Committees: A Modus Operandi 23
B. Factors Shaping Negotiation 26
1. The Competing Stakes and the Avenues for Compromise 26
2. The ingredients of the NegoUatlng "Atmosphere" 28
C. The Persistent Sources of Tension 30
m. SUGGESTIONS FOR REFORM 33
rv. ARE INDEPENDENT AGENCIES DIFFERENT? 38
A. The Unitary Nature of the Administrative Agency 38
B. Agency Structure and the Policy ImpllcaUons of InformaUon Sharing 40
V. CONCLUSION 41
Government Oillclals Interviewed for Study 42
166
Among the many interactions of the political branches of our national government,
perhaps none Is more Important than the routine sharing of Information between
congressional committees and administrative agencies. The quality of Congress's legislative
and oversight work often depends on agency infonnation. Yet. the executive Is adamant that.
In many contexts, its ability to control the Information available to it is critical to the
fulfillment of the executive's constitutionally vested functions. The process of Information
exchange — demand, response, possible negotiation and disclosure — is therefore central to
each branch's agenda.
The success of interbranch information exchange is very difficult to assess. There Is no
obvious way of determining In any particular case whether the Information provided to or
withheld from Congress is optimal given the public interests involved. There is no obvious
way to gauge the negotiating efllciency of the branches in resolving contested cases. There is
uncertainty even whether the branches are honoring their respective legal obligations because
little clear law exists to govern interbranch disputes over information, and each elected
branch interprets the governing principles very differently from the other.
Much of Part I and of Part n. A-3 and A-4, below — the doctrinal analysis of executive
privilege and the factual accounts of executive privilege disputes involving James Watt and
Anne Gorsuch — appeared in Shane. Legal Disagreement and Negotiation in a Government of
Laws: The Case of Executive Privilege Claims Against Congress, 71 MINN. L. REV. 461
(1987).
Despite these obstacles, some helpful generalizations are possible. It is possible, that is.
to suggest some broad substantive guidelines that could help foster a degree of disclosure or
withholding likely to be consistent with the interests of both branches, and of the public.
Likewise, procedural steps are available to enable the branches to reach agreements more
efficiently than they now do In some disputed cases. Because law operates in this area under
the dominant shadow of politics, it would be foolish to overestimate the utility of rule
prescription and legal process in mitigating undue tension between the branches in the
information exchange process. Some progress is possible, however, and improvement in this
area might yield benefits with respect to other aspects of the interbranch relationship as well.
To understand both the limits and the potential of reform. It Is Important to focus on the
Information exchange problem from two distinct angles. Part 1 below reviews the law m this
area — not only to clarify what rudimentary doctrines exist, but also to explain the
unlikelihood that much more authoritative law will be forthcoming. Part 11 reviews
institutional practice, which, although mindful of law. Is also distinctly political. An analysis
of clearly successful negotiations, as well as negotiations that were less obviously
constructive, suggests both the likeliest sources of tension between the branches and some
helpful avenues for agreement.
Part III assesses a variety of possibilities for reforming the current processes of
negotiating disputes and testing disputed claims of privilege against Congress. Part IV
considers the applicability of the refonn analysis to demands for information from so-called
"Independent agencies." The conventional wisdom in our capital city -- that Congress's
entitlement to information or the appropriate degree of disclosure varies between
"independent" and "executive" agencies -- makes little sense on either constitutional or policy
grounds.
This study benefited greatly from the comments of those present and former employees of
Congress and of the executive branch who agreed to be Interviewed for the paper. A list of
those willing to be acknowledged as Interviewees appears as an appendLx. Of course, the
conclusions I present ai^ mine, not necessarily theirs. I am also grateful for the research
assistance of Paul Goddard. Iowa '92.
167
Peter Shane
I. THE BACKGROUND OF LEGAL UNCERTAINTY
As In other separation of powers contexts, the ConstltuUon operates only loosely as a set
of restraints on the behavior of the political branches In disputes over Information. Nothing
In the Constitution expressly refers to Congress's entitlement to Information or to an
executive prerogative to withhold. Nor have Judicial opinions gone very far in elaborating the
law. As a result, the ConsUtuUon provides less a set of clearly understood rules than a
rhetorical framework within which each branch articulates Us asserted right to demand or to
withhold Information. ,
Congress's Institutional view of its right to demand executive branch Information Is easy
to summarize.^ Congress insists It has plenary authority to demand executive branch
Information In connection with any properly authorized legislative activity. Thus, for
example, the Freedom of Information Act. which exempts large categories of executive branch
records firom mandatory public disclosure express^ disclaims the application of those
exemptions to Congressional demands for information^ -- including the exemption generally
recognized as protecting documents that the executive branch deems to be covered by the
generalized deliberative privilege that Is perhaps the largest subspecies of executive privilege.^
The opinions of congressional counsel asseri additionally that no information generated at a
staff level Is properly subject to any executive privilege whatever.* Moreover, they recognize
no limitation as to the subject matter of information that Congress properly may demand --
even information relating to foreign relations, including International negotiations. Is within
'A helpful general synthesis of law and practice In this area Is J.C. GRABOW. CONGRESSIONAL
INVESTIGATIONS: LAW AND PRACTICE (1988).
^Helpful general presentations of Congress' view Include R EHLKE. CONGRESSIONAL ACCESS TO
INFORMATION FROM THE EXECUTIVE: A LEGAL ANALYSIS (Congressional Research Service RcpL No. B6-50A)
(Mar. 10. 1986). and OfBce of Senate Legal Counsel. Draft Memorandum re: Congressional Oversight of the
Department of Justice (Feb. 1986) (on (Ue with authocl.
»5 U.S.C. 552(c).
*5 U.S.C. 552(b)(5): NLRB v. Sears. Roebuck & Co.. 421 U.S. 132. 150 (1975) (That Congress had the
Govenunent's executive privilege spedflcally In mind In adopting Exemption 5 Is clear . . .."]. For a review of the
general contours of the doctrine surrounding Invocation of deliberative privilege in court see Weaver and Jones, The
DeUberatlve Process PrtuOege. 54 MO. L. REV. 279 (1989). The JusUOcaUon for such a privilege Is attacked vigorously
in Wetlaufcr. Justifying Secrecy: An ObtecOon to the General Deilberaliue PrliiOege. 65 IND. UJ. (1990)
(forthcoming).
^Memorandum from Stanley M. Brand, General Counsel to the Clerk. U.S. House of Representatives to Hon. John
Dingell. re: Attorney General's Letter Concerning Claim of Executive Privilege for Department of Interior Documents
Iherdnailer dted as House General Counsel's Watt Uemorandurri. reprtnted In Contempt of Congress: Hearings Before
the Suboomm. on Oversight and IrwesOgatlons of the House Comm. on Ejiergy and Commerce, 97th Cong.. 1st and 2d
Sess. 109 (1982) jherelnafter dted as Watt Contempt Hearlr^s].
Congress's refusal to recognize a privilege (or staff documents extends to attorney work product Memorandum
from Morion Rosenberg. American Law Division, Congressional Research Service to Subcomm. on Oversight and
Investigations of the House Energy and Commerce Comm. re: Assertion of Claims of the Attorney-Client and Work
Pnxluct Privileges Before a Congresslor^ Committee (Feb. 28, 1989). U has even been argued that courts shoukl
refuse to recognize an attorney-client privilege for govemn>ent entitles. Note, Attomey-Clieru PrixAlege far the
Couemment Entity. 97 YALE L J. 1725 (1988).
168
Congressional Access to Agency Information
Congress's puivlew.e The contrasting executive view is likewise straightforward. For the last
20 years at least, an executive branch doctrine of executive privilege has been embodied
explicitly In presidential documents. On March 24, 1969. President Nixon issued a general
memorandum to the heads of executive departments and agencies concerning congressional
demands for information.^ The Ford and Carter administrations left this policy Intact, and a
1982 redraft by President Reagan left untouched the core principle of that memorandum. »
That principle Is that the execuUve branch "has an obLgaUon to protect the confidentiality of
some communications," but will Invoke executive privilege against Congress only with
"specific Presidential authorization." in the "most compelling circumstances." and "only after
careful review demonstrates that assertion of the privilege is necessaiy."^ The scope of the
President's authority to withhold demanded information extends, under the executive view, to
all information, the disclosure of which would Impede the responsible dlschai:ge of executive
branch funcUons. Such Information may include state and military secrets, the contents of
Investigative files assembled for law enforcement purposes, information that would disclose
"Watt Contempt Hearings, supra note 5. at 1 16-117; Memorandum from Stanley M. Brand, General Counsel to
the Clerk. U.S. House of Representatlvrs to Hon. Elliot H. Levltas. re; Attorney General's Letter Concerning Subpoena
For Documents to Administrator of Environmental Protection Agency (hereinafter cited as House General Counsel's
Corsuch MciTKM-anduml. reprinted in H.R Rep. No. 968. 97th Cong.. 2d Sess. 58. 61-63 (1982). This is not to say that
Congress denies the Importance of withholding certain executive branch Information from the public, only that It
denies the executive branch's authority to regard dissemination to Congress as public disclosure. Congress does
reganj Itself as bound to provide for the nondisclosure of Information, the dissemination of which would compromise
national security. Id. That responsibility may obligate a congressional subcommittee, for example, to respect a good
lalth executive branch demand that It receive sensitive Information only In "executive session.' See Senate Standing
Rule XXIX(6). reprinted In S. Doc. No. 1. 98th Cong.. 1st Sess. 61 (1984): House of Representatives Rule XLV1I1(7).
reprinted in H.R Doc. No. 271. 97th Cong.. 2d Sess. 692-696 (1983). However, the authority to disclose publicly
such information as a committee receives In executive session would reside In the committee, never In the executive
brainch.
This rendition of Congress's doctrine vls-a-vls executive prtvUege may appear at odds with the various occasions
on which subcommittees have acceded to executive Insistence on nondisclosure. See generally. Memorandum from
Theodore B. Olson. AssUtant Attorney General. Olllce of Legal Counsel, for the Attorney General, re: History of
Presidential Invocations of ExecuUve Privilege Vls-a-vls Congress (Dec 14, 1982). reprinted inH.R. Rep. No. 968, 97th
Cong.. 2d Sess. 90 (1982): Memorandum from Theodore B. Olson, Assistant Attorney Genera], Office of Legal
Counsel, for the Attorney Genera], re: Refusals by Ejtecudve Branch Officials to Provide Information or DocumenU
Demanded by Congress (Jan. 27, 1983): SUBCOMM. ON SEPARATION OF POWERS OF THE S. COMM. ON THE
JUDICIARY, 93D CONG., 2D SESS., REFUSALS BY THE EXECUTIVE BRANCH TO PROVIDE INFORMATION TO THE
CONGRESS, 1964-1973 (Comm. Print 1974). Those occaslor^s, however, do not represent any unambiguous
concession to the authority of the executive branch to withhold. Even Congress's Insistence that It Is empowered In
every Instance to demand and receive executive branch Information would not require Congress to stand on Its
asserted authority at every opportunity. It can only be said with confidence that there are many Instances In which
Congress's calculation of Its own Interests, lU confidence In the President, and the asserted Interests of the executive
branch permit It to accommodate the execuUve branch, whatever Congress's view of underlying principle. Sec, e.g..
Soi&er. ExecuOue PriuOege: An Historical Wotc, 75 COLUM. L. REV. 1318. 1321 (1975).
It Is likewise true that the executive branch's willingness to submit to Congress InformaUon that might have been
protected under a privilege claim does not gainsay the executive branch's asserted authority to claim privilege. See
peiKrolly SUthls. Executtje Cooperation: Presidential Recognition of the InijestigaHue Authority of Congress and the
Courts, 3 J.L. & POL. 183 ( 1986). The difficulty that Is posed for Congress when It acquiesces In an executive branch
Insistence on secrecy, or for the executive when It acquiesces In a congressional demand for InformaUon. Is Justifying
nonacqulescencc In other lr«tances depending on their facts. Thus, one House Judiciary Committee criUctsm of the
execuUvr branch's handling of the EPA dispute discussed below Is that the execuUve branch failed to explain how the
Information It sought to withhold dirfetrd from earlier EPA Information that had been voluntarily released. H. R Rep.
No. 435. 99th Cong., Ist Sess. 28-31 (1985).
^Memorandum irom the President for the Heads of ExecuUve Departmenls and Agencies Establishing a Procedure
to Govern Compliance with Congressional Demands for InformaUon (Mar 29. 19691. reprinted In Ejcecutlve Privilege-
Secrecy In Coverrvrerw Hearlr^s on S 2170. el of. Be/ore the Subcomm. on Iruergovemmental Relations of the Senate
Comm. on Gout Operaflons. 94th Cong., 1st Sess. 207 (1975).
BMemorandum from the President for the Heads of ExecuUve DepartmenU and Agencies, Procedures Governing
Responses to Congressional Requests for Information (Nov. 4. 1982). reprinted at H.R Rep. No. 435. 99th Cong.. 1st
Sess. 1106(1985).
»Id
169
Peter Shane
the Identity of a government Informer, personal Information about executive branch
personnel, and other material generated In the process of policy dellberaUon. the disclosure of
which would threaten intrabranch decisional processes.'" In the executive view, privileged
materials may emanate originally from staff levels considerably removed from the President,
although a claim of privilege requires presidential familiarity with and review of the
materials. >>
Because the ExecuUve branch regards the protecUon of confldenUal InformaUon as
necessary to protect the integrity of executive power. It cannot discharge that responsibility by
divulging InformaUon to Congress under a promise that Congress will act responsibly in
deciding whether to disseminate the InformaUon further. Such a delegation of control over
InformaUon would be. in the execuUve view, an unconstltuUonal abdlcaUon of power"
analogous to an unconsUtuUonal delegaUon by Congress of legislaUve authority via a
standardless statute." Further, as Attorneys General have recognized, this poslUon obviates
having the execuUve branch purport to decide which congressional committees are
trustworthy, and which are not."" The executive branch asserts that It is obUgated to divulge
privileged InformaUon to Congress only when the InsUluUonal needs of Congress overbalance
the interest of the executive branch in nondisclosure. According to the execuUve. moreover, it
Is enUUed to follow its own best Judgment as to where the balance of Interests lies.
As part of its balancing view, the executive branch concedes that the President may not
Invoke executive privilege to withhold Information from Congress that is probaUve of executive
wrongdoing. 15 Thus, prior to the Nixon Impeachment InvesUgaUon. Presidents had repeatedly
stated the right of the House to demand execuUve branch evidence In connecUon with such
Inquiries; Nixon's refusal to honor Judiciary Committee subpoenas duces tecum was reported
by that Committee as an arUcle of Impeachment.'* A formal opinion by Attorney General
William French Smith confirmed the Reagan Administrations agreement that InformaUon
relevant to an InvestlgaUon of execuUve corruption may not be shielded from oversight. '^
The Judicial view, as distilled from a very few opinions, respects elements of both the
"congressional doctrine" and the "execuUve doctrine" of execuUve privilege. There is. however,
no Supreme Court adjudicaUon of any execuUve privilege dispute with Congress. There Is
thus no one opinion that purports to resoh^e definitively, from the Judicial point of view, the
principled contentions that such disputes involve. Several Supreme Court decisions
nonetheless Imply what the Court's view would be on a number of criUcal issues.
Of central Importance is the 1974 opinion in United States v. Nixon. '» which held that the
President has a consUtuUonally based, but defeasible privilege to withhold informaUon from a
court based on a generalized claim of presidential confidentiality. The Court identified as the
consUtuUonal basis for the privilege "the supremacy of each branch within Its own assigned
'o;d.
"U.
"Letter from Attorney General William French Smith to Hon. John D. Dlngell (Nov. 30. 1982). reprtnled In H.R.
Rep. No. 968. 97lh Cong.. 2d Scss. 37. 39 (1982) rfTlhe President has a responsibility vested In him by the
Constitution to protect the confidentiality of certain documents which he cannot delegate to the Legislative Branch.").
'*See. e.g.. Schechter Poultry Corp. v. Unltcxl Slates. 295 U.S. 495 (1935).
'^Irtler from Attorney General WUIIam Frrnch Smith to Hon. John D Dlngell (Nov. 30. 1982). reprinted In H.R.
Rep No. 968. 97th Cong.. 2d Sess. 37. 39 (1982). dUng a 1941 letter from Ihcn-Attomey Genera) Robert Jackson to
Hon. Carl Vinson: "Unfortunately. ... a policy cannot be made anew because of personal confidence of the Attorney
General In the Integrity and good faith of a particular committee chairman."
'S/d. at 41.
'«H.R. Rep. No. 1305. 93d Cong.. 2d Sess. 4 (1974).
"6 Op. Off. Lega) Counsel 31. 36 (1982).
'•418U.S. 683(1974).
170
Congressional Access to Agency Information
area of constitutional duties/''^ and "the valid need for protection of communications between
high Government officials and those who advise and assist them In the performance of their
manifold duties. "^o The Court was untroubled that the Constitution makes no express
provision for executive privilege. Instead, citing the holding of McCulloch v. Maryland*' with
respect to the implied powers of Congress, the Court held that a presumpUve executive
branch privilege of nondisclosure could follow by analogous Implication from those powers of
the President that are express.22
Besides finding a constitutional basis for executive privilege against courts, the Nixon
opinion Is critical for two additional reasons. The first Is its holding that the claim of privilege
in that case was overcome by the Institutional need of the trial court to have the information
necessary to secure "the fair administration of criminal Justice."*^ Putting aside whether the
Court's balancing In Nixon was entirely persuasive.'* it is a central element of the Supreme
Court's doctrine that a claim of executive privilege may be weighed against the powers of the
courts in performing their assigned constitutional tasks.
The other critical point is the Court's Implication that different claims of privilege may be
accorded different weights according to the bases of the claims. Thus, the Court
distinguishes at length the generalized Interest Invoked In Nixon in the protection of
confidential presidential communications from narrower claims of privilege based on military
and state secrets, as to which 'the courts have traditionally shown the utmost deference to
Presidential responsibilities. "^s
The Court In Nixon expressly reserved any question concerning "the balance between the
President's generalized Interest in confidentiality . . . and congressional demands for
information. "26 One thus cannot be entirely certain whether the Court would recognize any
constitutionally based privilege against Congress, or. if it did. whether its balancing approach
would be the same. On the other hand, it is hard to imagine that the constitutionally based
privilege recognized in Nixon would have no relevance whatever in a contest with Congress.
The Court's modem approach to the separation of powers is generally a balancing approach,
except in those cases in which the Court perceives it is interpreting a fairly specific structural
or procedural constitutional command.'^ A separation of powers claim is recognized
whenever the initiative of one branch substantially Interferes with the power of another to
accomplish its constitutional tasks: In such a case, the Initiative must be Justlfled by some
overarching governmental interest." Given this general approach, the Court would surely
find those executive branch responsibilities supporting the existence of privilege In Nixon to
be no less deserving of constitutional concern when the threat to the fulfillment of those
executive duties emanates from an extrajudicial source. The two relevant Court of Appeals
'8/d. at 705.
»o/cL
2" 17 U.S. (4 Wheat) 316 (1819).
=418 U.S. at 705 & n. 16.
"M. at 713.
»<The Court s analysis Is forcefully questioned In Van Alstyne. A Mulcad and Constitutional Review of United
Stales V. NUcon. 22 U.C.UA. U REV. I 16 (1974). In applying the NUnn case. U.S trial Judges have balanced the
relevant Presidents claim of conndenllallty not against the institutional Interests of the Court, but against the need
of a criminal defendant for the information In order to support a particular defense. See Vnhed States v. North. 713
F.Supp. 1448. 1450 P.D.C. 1989) Idenying subpoena for testimony of President Rcaganl; Untied Slates v Polndexler.
732 F.Supp. 142. 147-48 (D.D.C. 1990) (upholding subpoena for videotaped testimony of President Reagan, subject
to special protections for President): United Slates v. PolMexter. Crlm. No 88008001 (HHCI (D.D.C. Mar 21. 1990).
available on LEXIS. Cenfed Ubary. Dist File) (upholding claim of executive privilege as to presidential diaries).
»418U.S. at 710.
Mia. at 712 n. 19.
"Nixon V. Administrator of Genera! Services. 433 U.S. 425. 443 (1977).
M/d.
171
Peter Shane
decisions on executive prtvUege against Congress are consistent with this analysis. Less than
two months before United States v. Nixon, the U.S. Court of Appeals for the District of
Columbia Circuit, sitting en banc, upheld the D.C. District Court's refusal to enforce a Senate
committee subpoena against Richard Nixon for the "original electronic tapes" of five
conversations between Nixon and John Dean.^s The court of appeals recognized a
presumptive executive privilege to protect the confidentiality of presidential communications,
and. in the peculiar context of this case, found that his privilege outweighed the need of the
Senate Select Committee on Presidential Campaign Activities for the subpoenaed tapes. The
dispositive facts were that copies of all the subpoenaed tapes had been delivered to the House
Committee on the Judiciary In connection with the Nixon impeachment Inquiry, four of the
five original tapes had been delivered to the D.C. District Court in cormectlon with the
Watergate prosecutions, and the President had already released partial transcrtpts of the
tapes at Issue. Because of the House Judiciary Committee investigation, the Senate
Committee's "oversight need for the subpoenaed tapes (was), from a congressional
perspective, merely cumulative. "3° The Committee's need for the tapes In aid of its legislative
function was likewise limited because the Committee pointed "to no specific legislative
decisions that [could not) responsibly be made without access to materials uniquely
contained In the tapes or without resolution of the ambiguities that the (released] transcrtpts
may contain. "3' This reasoning thus presages the Supreme Court's decision in both
recognizing a presumptive, constitutionally based privilege In the President, and in holding
that the privilege is defeasible.
Three years later, the Court of Appeals followed a similar approach in monitoring an
interbranch executive privilege dispute in United States v. American Telephone & Telegraph
Co.»2 The adjudicated dispute arose when the Subcommittee on Oversight and Investigations
of the House Interstate and Foreign Commerce Committee subpoenaed documents from A.T.
& T. pertaining to certain warrantless wiretapping that the United States, with the assistance
of A.T. & T.. assertedly conducted for national security reasons. The Department of Justice
sued A.T. & T. to prevent compliance with the subpoena on the ground that public disclosure
of the Attorney General's letters requesting foreign intelligence surveillance of particular
targets would harm the national security. The chair of the House subcommittee Intervened,
on behalf of the House, as the real party defendant.
Rather than resolve the dispute on its merits, the Court of Appeals, when the case first
reached It. remanded with a suggestion that the parties negotiate a settlement under
guidelines proposed by the Court.=" The Justice Department then proceeded -
unsuccessfully -- to attempt to negotiate a procedure under which, instead of receiving the
demanded letters, the subcommittee would receive expurgated copies of the backup
memoranda upon which the Attorney General based his decisions to authorize wiretaps.'*
Information identifying the wiretap targets would be replaced by generic descriptions written
by the Department. Negotiations broke down over the procedure for assuring the
subcommittee of the accuracy of these descriptions.
When the case returned to the Court of Appeals, the court ordered a procedure very close
to the executive branch's final offer. H did so based essentially on three premises. First, the
Court divined a constitutional requirement of interbranch compromise: "lElach branch
should lake cognizance of an implicit constitutional mandate to seek optimal accommodation
through a realistic evaluaUon of the needs of the coiifllcllng branches in the particular fact
^Senate Select Commltlee on PresldenUal Campaign AcUvlUcs v. NUon. 498 F.2d 725. 726 (DC. Clr. 1974).
»;d. al 732.
"/d. at 733.
"United States v. American Telephone & Telegraph Co.. 567 F.2d 121 (DC. Clr 1977).
"United Slates v. American Telephone & Telegraph Co.. 551 F.2d 384 (1976).
*«567F.2d at 124-125.
172
Congressional Access to Agency Information
situation. "» Second, a court has power to balance the competing Interests of President an3
Congress In a properly presented separation of powers case. Third, in proffering a settlement
to Congress, the executive branch Is entitled to respect for both Its Institutional Interests and
for Its presumptive good fsilth. but Congress Is likewise entitled to continuing Judicial
vigilance to assure that Its oversight Interests are fully protected. ^s
Supreme Court precedent relevant to Interbranch privilege disputes Includes cases
upholding Congress' general investigative powers. Just as the Court In Nixon, without textual
support, recognized a constitutionally Implied executive power to resist disclosure of
presidential communications, the Court, without textual support, has recognized a
constitutionally Implied power of congressional Investigation. The leading case. McGraln v.
Daugherty.37 arose from a Senate Investigation into alleged corruption In the Justice
Department under former Attorney General. Harry M. Daugherty. The Court overturned a
lower court order that had discharged Daugherty's brother from his obligation to testily before
a Senate select committee Investigating the alleged abuses.
In upholding the Committee's subpoena, the Court reached two crttlcjil holdings. The
first was that "the power of Inquiry — with process to enforce it — is an essential and
appropriate auxlllaiy to the legislative function."" and is. therefore. Implicitly vested In
Congress by the Constitution. The second Is that, although this power exists only In aid of
the legislative function. Congress need not have before It a specific legislative proposal In
order for its authority to be triggered. Such was not the case In McGraln. It was sufficient
that the Court could conclude on the face of the subpoena: "Plainly the subject was one on
which legislation could be had and would be matertaUy aided by the Information which the
Investigation was calculated to elicit.""
The crux of the Judicial doctrine of interbranch executive privilege disputes thus appears
to be as foUows: Congress has a constitutionally based power to demand information
pursuant to Investigations In aid of Its legislative and oversight functions. The President, on
the other hand, has a constitutionally based privilege to withhold disclosure of information,
the release of which would Impede the performance of executive branch responsibilities. A
presumptive claim of privilege may be asserted to protect even the President's generalized
Interest In confidential deliberations. Executive privilege, however, is defeasible, and a claim
of privilege based on a generalized Interest In confidentiality may well be less weighty than
narrower claims based on military and state secrets.
It Is readily perceptible that the body of precedent Just recounted contains too few
episodes analyzed in too little detail to serve as much of a constraint on the arguments that
the political branches pose to one another. Nor Is a great deal more Judicial guidance likely to
be forthcoming. Courts may pronounce on separation of powers issues only In properly
presented article UI cases. Many disputes between the political branches over principle never
become "cases" because the branches reach Informal settlements. E>en fairly protracted
disputes may not Involve the Interests of particular persons in a manner that confers
Individual standing to sue. Finally, even if executive privilege cases arise that do involve
parties with standing, courts may mvoke such "avoidance rules" as the ripeness doctrine to
obviate any Judicial conclusion on the merits. «<>
»*Jd. at 127.
"Seeld. at 131 n.34.
»^273U.S. 135(1927).
^kL at 174.
»9/d. at 177.
«>Sec generally Baker v. Carr. 369 U.S. 186. 217 (1962) (describing the circumstances In which the political
question doctrine te properly Invoked): Barnes v. Kline. 759 F.2d 21. 41 P.C. Clr. 1985) (Bork. J.. dlsscnUng.
disputing the existence of congressional standing to litigate disputes between Congress and the President), vacated
sub nxn. Burke v. Barnes, 107 S.CL 734 (1987).
173
Peter Shane
Recourse to avoidance doctrines Is likely because the ordinary Judicial predisposition
towards restrained decisionmaking has strong institutional reinforcement In a separation of
powers case. The courts have nothing to gain institutionally from venturing putatlvely final
resolutions to interbranch Impasses that directly involve neither individual rights, nor the
powers of the courts. Indeed. It Is intriguing to review in this light the results of the three
executive privilege cases described above. The Supreme Court unanimously demanded
disclosure In one case. Nixon. In which the Interest not only of the courts, but of Congress
and of the public, seemed to be profoundly on the side of oversight. In Senate Select
Committee, the D.C. Circuit upheld a privilege claim, but only In a case In which one
committee of Congress already had the Information that another committee sought. In the
one truly close case of the three. United States v. A. T. & T.. the Court resisted any decisive
lawmaking -- fashioning instead a mediator's role that balanced the two branches'
compromise offers. This body of law strongly echoes the kind of dlplomaUc lawmaking of
which Marbury v. Madison" > Is the classic example: the courts Insist they have the power to
declare what the law is. but nonetheless manage to legitimate the constitutional powers of
both Congress and the President, calling upon both to reach reasoned compromises in any
truly hard case.
«'5 us. (1 Cranch) 137 (1803).
174
Congressional Access to Agency Information
II. NEGOTIATING OVER INFORMATION
If law. In the sense of "rules," does not directly control the outcomes in interbranch
disputes over information In any strong way, then, what does? Government ofTlclals
Interviewed for this study typically say, "Politics." This answer, seemingly synonymous with.
"The stronger party prevails,"" conjures up an image of negotiating as arm-wrestling. Before
exploring the details of specific negotiations, however. It is possible to Identify at least three
respects In which an arm-wrestling model of information disputes could well be misleading.
The first Is that either branch may be strengthened politically by the weight of Its legal
arguments. Although the law does not directly control most information disputes. Judicial
precedent lends legitimacy to governmental concern for a variety of interests that one branch
or another may Invoke in a particular controversy. Arguing on the basis of such Interests
bolsters a political branch's public credibility. Thus, It is a mistake to conceptualize "politics"
as if law were irrelevant to political strength.
Second, the branches have a strong and continuing interest In the success of their
overall relationship. Despite an Institutional competitiveness that is naturally augmented by
differences between the political parties that control the two branches, there are also strong
pressures for accommodation. These pressures plus the political salience of making
principled arguments adds further complexity to any accurate model of Interbranch
negotiations.
Third, an accurate assessment of strength Is necessarily multi-dimensional, and the
relative strength of the two branches at any given moment may be difficult, even for the
branches themselves, to calculate. It Is not the case, despite Congress's appropriations and
Impeachment powers, and the political unpopularity of defending nondisclosure In £dl but
extreme cases, that Congress always has the upper hand.
A.The Pattern -- and Some Cases
In deciding whether the process of information exchange works well, two sets of
questions are Important, although each Is hard to answer. The first pertains to the
substantive quality of the Information exchange: Does Congress get enough information,
presented with sufficient helpfulness, to do Its Job well? To the extent there are Interests In
nondisclosure, either to the public generally or even to Congress, do the political branches
assess and accommodate those interests appropriately? The second set of questions is
procedural: Does It take too long for Congress to gel the information it requires? ftre
negotiations more confrontational, and more costly In terms of the general interbranch
political relationship, than they need be?
Some strong generalizations are possible as starting points in analyzing these issues. By
all accounts, most congressional demands for tnformallon are handled without confrontation,
and 11 Is clear that most agencies respond to most requests by providing whatever information
Congress Is seeking. 11 follows that. In most cases. If Congress is not getting the Information
It needs, the problem is not agency unresponsiveness to Congressional demands, but
something else. Indeed, in many contexts. Congresss main problem Is as likely to be a
<2|l has been argued that even during the founding period. "|l|he rclaUve political strengths of the branches (and
the Individuals Involved) were more often than not the determinative factors In the resolution of linterbranchl access
disputes." R Ehlke, Congressional Access to Information from the E^xccutive: A Legal Analysis. Cong. Research Serv.
Rpt. No. 86-50A 2-3 (Mar. 10. 1986).
175
Peter Shane
surfeit of information, or at least of unfocused Information, as It Is to be an information
deflclt.«3
One systematic attempt to measure agency nonresponslveness to Congress was a 1974
study by the Senate Judiciary Committee to determine the number of executive refusals to
provide mformatlon to committees or to subcommittees. The study turned up 284 refusals
for a ten year period." Although deplored In the report, these instances would amount to
fewer than 30 per year out of what are likely to be hundreds of thousands of requests.
This pattern Is confirmed by impressionistic evidence. For example, representatives of the
Department of Defense general counsel's office estimated that, as of the summer of 1989, the
Government Accounting Office -- generally regarded as an arm of Congress -- was conducting
over 300 studies of their department. None, in their judgment, was proving confrontational,
although much of the Information being shared with the CAO Is sensitive.
A spirit of cooperation will prevail equally when the executive responds affirmatively to
Congressional requests for Information and when an agency Is persuasive that a requested
disclosure would be inappropriate. A former assistant attorney general for leglslaUve affairs
reports that, during his period of service, offices of Individual members sometimes called
asking for the release of Information concerning criminal InvesUgatlons targeting their
constituents or others. When he explained the Department's view as to the Impropriety of
sharing such Information, the typical response was an expression of prior unawareness
regarding the Department's position, and an acceptance of that position. *5
The general pattern of responsiveness and nonconfrontatlon. however, does not belle the
possible existence of real problems. Confrontational disputes, though rare, may be of special
Importance politically. They may concentrate In certain areas of public concern, so that
public confidence In a well-informed Congress may Justifiably be different for different certain
subject matters. Moreover, the lack of confrontation or tension In a particular case of
disclosure or nondisclosure does not prove the appropriateness of the outcome In that case.
A strong spirit of cooperation may signal a Congress too lenient In its oversight or an
executive too lax in Its management. A number of congressional employees with extensive
oversight experience have expressed the view that many members are unaware of the full
extent of their oversight prerogatives and. thus, they press less than they might for executive
disclosure. ,6
To assess such potential problems against the backdrop of a generally successful pattern
of Information sharing. It Is necessary to fix more concretely on specific disputes.
1. Secretary of Commerce Rogers C. B. Morton. 1975: Disclosure of
Confidential Commercial Information
In 1975. the Subcommittee on Oversight and Investigations of the then-House Committee
on Interstate and Foreign Commerce investigated the degree to which Arab countries had
asked U.S. companies to refuse doing business with Israel." On July 10, the subcommittee
♦^In this respect Congress's dlfllculUes In mana^ng inrormation are likely to parallel Ihosc of administrative
agencies. See generally Robinson. The Federal Communicattora Commission: An Essay on Regulatory Watchdogs. 64
VA. U REV. 169. 216-30(1978).
♦<SUBCOMM. ON SEPARATION OF TOWERS OF TllE SENATE COMM. ON TllE JUDICIARY. REFUSALS BY THE
EJCECUnVE BRANCH TO PROVIDE INFORMATION TO THE CONGRESS 1964- 1973. at 13 (Comm. Prlnl 1974).
♦sinlervlew with Robert A. McConnell, former assistant attorney general In charge of the Odice of Legislative
Affairs. U.S. Department of Justice. In Washington. DC. (Aug 4. 1989) (notes on file with author).
♦^Interview with Morton Rosenberg. Congressional Research Service. In Washington. DC. (Aug 3. 1989) (notes on
fUe with author): Interview with Charles Tiefer. Deputy General Counsel to the Clerk. U.S. House of Representatives,
in Washington. D.C. (Aug. 3. 1989) (notes on (Ue with author).
*'See generally Contempt Proceedings Against Secretary of Commerce. Rogers C. B. Morton: Hearings Before the
Subcomm. on Oversight and Investigations of the House Comm. on Interstate and Foreign Commerce, 94th Cong..
176
11
Congressional Access to Agency Information
requested that the director of the Commerce Departments Office of Elxport Administration
disclose to It copies of all boycott requests filed by U.S. companies under the Export
Administration Act of 1969.« Secretary of Commerce Rogers C. B. Morton refused to produce
the documents, citing section 7(c) of that Act:
No department, agency, or official exercising any functions under this Act shall
publish or disclose information obtained hereunder which is deemed
confidential or with reference to which a request for confidential treatment is
made by the person furnishing such information, unless the head of such
department or agency deteimlnes that the withholding thereof is contrary to
the national Interest. «
The subcommittee formally subpoenaed the documents on July 28. postponing the
effective date of the subpoena until a hearing could be convened in September. so
On September 4. Attorney General Levi opined formally that § 7(c) covered disclosures to
Congress, and that Morton was empowered to withhold the documents, given the Secretary's
conclusion that their release was contrary to the public interest, si Morton offered at a
September 22 hearing to Inform the committee of the number of reports filed, together with
statistical information on the questions asked and the companies' responses, but. citing the
Attorney General's opinion. Morton would not reveal the companies' names or details of
particular transactions. sa
On October 21 and 22. the subcommittee took testimony from a number of legal scholars
concerning the Secretary's withholding of documents. When Secretary Morton persisted in
his position, the subcommittee, on November 11. voted him in contempt." On December 9.
the full Interstate and Foreign Commerce Committee was scheduled to consider the contempt
resolution. The day before, following an agreement with subcommittee chair Moss to receive
the documents In executive session and not to make them public. Secretary Morton agreed to
comply with the subpoena." It thus took five months to secure compliance with the
subcommittee's request, pursuant to an agreement to protect the confidentiality of the
demanded documents.
2. Secretary of Energy Charles Duncan. 1980: Deliberative Documents
on the Petroleum Import Pee
The final year of the Carter Administration witnessed a relatively brtef. but highly
confrontational dispute between a Democratic House subcommltee and a Democratic
President concerning Congressional access to deliberative documents. On April 8. 1980. the
Environment. Energy, and Natural Resources SubcommlUee of the House Committee on
Government Operations requested that the Department of Energy disclose to it all documents
relevant to President Carter's Imposition, six days earller.ss of a fee on Imported crude oil and
1st Scss. (1975) (heretnaller. cited as Morton Healing. Rosenthal and Crrssman. Congressional Access to Confidential
lr\formatton Collected by Federal Agencies. 15HARV. J. ON LECIS. 74. 82 83(1977).
««MortDn Healing, at 152.
«50 U.S.C. § 2406(c).
soMorton Hearing, at 161.
S'kiat 173.
«a/d. at 11.
"W. at 133-34.
S4 Rosenthal and Cressman, supra note 47. al 83.
ssproclamaUon No. 4744. 45 Fed. Reg. 22.864 (Apr. 3. 1980).
177
12
Peter Shane
gasollne.se The Subcommittees express concerns were (1) the Impact of the fee on supplies of
gasoline and heating oil and (2) the capacity of the Department of Energy to monitor the fee
program to assure Its falmess.s^ It was indicative of the fee's unpopularity that DemocraUc
House members were publicly organizing a resolution in opposlUon to the fee within two
weeks of the President's order.
The Department's response was to refuse the transmittal of any documents pending their
review by the White House. The Department pointedly sought to avoid the InvocaUon of
execuUve privilege, arguing only that the dellberaUve nature of the documents necessitated
their review by the White House before an authoritative decision not to Invoke privilege could
be made.M Unpersuaded. the subcommittee, on April 22. voted to subpoena the
documents.ss The subcommittee then decided to give Secretary of Energy Duncan two days
to respond to Its request before formal service of the subpoena. On April 23, Secretary
Duncan forwarded 28 documents, plus a letter explaining his decision not to provide "a
substantial number" of other documents, including "memoranda setting out policy and legal
advice to senior advisers of the Department and the Executive Office of the President, meeting
notes, and drafts of documents."«> Although not invoking privilege. Secretary Duncan wrote
that full compliance with the subcommittee's subpoena "would affect adversely the free and
frank exchange of opinions In future deliberations In the Department and the Executive
Branch as a whole. . .."ei
Subcommittee chair Toby Moffett responded to the letter by engaging in personal
negotiations with White House Counsel Uoyd Cutler and Secretary Duncan.62 When those
negotiations failed to produce an immediate resolution, the subcommittee reconvened a
hearing at which It sought information from the Department of Energy's deputy general
counsel, Thomas Newklrk, concerning the rationale for nondisclosure. Mr. Newkirk testified
that there was no national security concern underlying the Department's reluctance to
disclose, and defended the posIUon that. If the President so determined, it could be
appropriate to withhold under executive privilege even documents that had originally been
prepared entirely for internal Department of Energy use.s^ At the conclusion of its April 24
session, the subcommittee moved to subpoena Secretary Duncan to appear personally with
the demanded documents on April 29. «
On April 28. DOE'S General Counsel Lynn Coleman offered to permit the subcommittee
chair and its ranking member. Rep. McCloskey. to review the documents under a promise of
confidentiality. » At the April 29 hearing. Duncan sought, again, to withhold the documents
without invoking executive privilege. Indicating. howe\'er. that privilege would be invoked if no
accommodation could be found.^^ When he failed to accept an offer that the documents be
presented to the subcommittee in executive session, not to be released further except by
majority vote and after an opportunity for DOE to object, the subcommittee voted to hold
Secretary Duncan in contempt .6'
^The Petroleum Import Fee: Department of Ejvrgy Ouers\ghl: Hearings Be/ore a Subcxtmm. ofttv House Comm. on
Government Operattons. 96lh Cong.. 2d Sess. 2 (1980) (hereinafter, died as Duncan Hearing)
S'kt at 1-2.
»kl at 3-8.
«>J<i at 35.
"0/d.at96. 100-01.
«'ld.al 101.
aJ/d. at 96.
ssfct at 102.
"fctat 116- 17.
sSfcLat 119-20.
^Id. at 126.
^kt at 134-39.
178
Congressional Access to Agency Information
13
By May 14. 1989. the White House had decided to release all documents to the
subcommittee under the terms of the subcommittee's Dnal offer." Although the
subcommittee reconvened on May 14 to begin reviewing the merits of the fee program, the
program was essentially foredoomed by a district court opinion one day earlier voiding the
President's executive order as beyond his statutory authority with respect to Import
regulation." The Senate Finance Committee immediately voted to approve legislation
prohibiting any further fee.™
3. Secretary of the Interior James Watt, 1981-82: Executive Privilege
and Foreign Trade Policy
The first highly publicized confrontation between Congress and the Reagan
Administration over information involved former Secretary of the Interior James Watt. During
the summer of 1981. the Oversight and InvestlgaUons Subcommittee of the House Conmilttee
on Energy and Commerce requested from his department all documents -- including
documents at the staff level^' -- relevant to the status of Canada under the so-called
reciprocity provisions of the Mineral Lands Leasing Act." Watt testified on August 6. 1981
that the department was unlikely to divulge all of the relevant documents because some were
confldenUal.73 just over seven months later, following full committee approval of a resolution
to hold Watt in contempt of the House, the White House permitted subcommittee members to
review the last of the documents that Interior had originally identified as responsive to the
subcommittee demand. ^^
The general subject of the subcommittee's inquiry was the impact of Canadian energy
and investment policies on Umted States energy resource companies holding assets in
Canada. Tlie hearings were prompted by aUegations that the Canadian government was
trying, through its policies, to devalue the assets of these companies unfairly and to provoke
takeover attempts by Canadian interests.'s Among the possible retaliatory steps available to
the United States would have been Invocation of the MLLA reciprocity provisions.™ which
permit foreign citizens to hold interests in mineral leases on United States public lands only if
their countries provide equivalent opportunities for United States investors. Under the MLLA.
Congress vested in the Secretary of the Interior the authority to determine whether foreign
countries are providing reciprocal treatment for U.S. mineral irtvestors. By the summer of
1981. Secretary Watt had not yet made a decision as to Canada. Because of the possibility
that a decision adverse to Canada might help protect United States investment interests, the
Committee's attention had turned to oversight of Watt's decislormiaklng process. The
subcommittee's mformal demand" in early August. 1981 elicited a turnover of 143
documents on September 24. 1981. accompanied by a letter from Watt's legislaUve counsel
asserting that executive privilege might be invoked to protect various documents not
disclosed. On September 28. the subcommittee voted to subpoena the remaining documents,
and the subpoena was served, after further negotlaUon. on October 2. Watt responded by
releasing an adalUonal 32 documents following what he characterized as an "interagency
review" of their contents. On October 13. 1981. President Reagan formally asserted executive
"fct at 142.
"•Independent Gasoline Marketers Council v. Duncan, 492 F.Supp. 614 (D.D.C. 19801.
^Duncan Hearing, at 141.
''<Watt Contempt Hearings, supra note 5, at 3.
"30U.S.C. § 181.
'^Watt CorUempt Hearings, supra note 5. at 3.
''*ld. at 385.
'SH.R. Rep. No. 898. 97th Cong.. 2d Sess. at 3-4.
'eso U.S.C. § 181.
"H.R Rep. No. 898. 97th Cong.. 2d Sess. at 4-8.
179
14
Peter Shane
privilege as to the final 31 dcx:uments.™ Secretary Watt reported the President's decision in
testimony to the subcommittee on October 14. 1981. At that time. Watt also asserted that
the executive branch had tried unsuccessfully to proffer "other means to familiarize the
subcommittee with the contents of these papers without the necessity of providing actual
copies of the documents themselves."™
In refusing Congress' request for all the documents. Secretary Watt relied on a formal
opinion rendered to the President by the Attorney General upholding the President's claim of
privilege." The reasoning of the Attorney Genereil's brief opinion was straightforward. It
began from three premises. First, the executive branch is constitutionally entitled to protect
"quintessentlally deliberative, predecislonal" documents.^" Second, although Congress has
legitimate interests In obtaining executive branch Information, its Interests In information "for
oversight purposes lare] . . . considerably weaker than Its Interest when specific leglslaUve
proposals are In questlon."82 Third, "Itlhe congressional oversight interest will support a
demand for predecislonal, deliberative documents In the possession of the Executive Branch
only in the most unusual circumstances. "s^ From these premises, it followed that the
documents withheld could be withheld because they all were "either necessary and
fundamental to the deliberative process presently ongoing In the Executive Branch or relate to
sensitive foreign policy considerations. "« The Attorney General concluded, 'The process by
which the President makes executive decisions and conducts foreign policy would be
Irreparably impaired by the production of these documents at this tlme."8s
In the ensuing months, the subcommittee tried unsuccessfully to elicit the personal
appearance of Attorney General William French Smith to defend his opinion. The printed
hearings relating to the eventual resolution of contempt Include a detailed rebuttal of the
Smith opinion by then-General Counsel to the Clerk of the House, Stanley Brand,* and an
exchange of testy letters between subcommittee chair John Dingell and the Department of
Justice concerning the possibility of Smith's testifying.*'
The Brand letter forcefully questions all of the Attorney General's assertions concerning
the limited investigative powers of Congress. Brand argues that, to the extent executive
privilege exists, those documents that were generated at the staff level In a cabinet
department could never be protected by It." According to Brand, Congress does not Interfere
with any executive power In demanding such documents, and its authority to seek such
Information In performing Its oversight function is at least as great as Congress's tavesugatlve
powers In connection with legislative deliberation.^
With negotiations over the documents proceeding, the subcommittee held hearings In
November. 1981 on the subject of executive privilege generally and on the Attorney General's
opinion." Neither the hearings, nor the contmuing negotiations resolved the dispute. On
February 2. 1982, without having met the subcommittee's disclosure demands. Secretary
'"Watt Contempt Hearings, supra note 5. at 66 [President Reagan's Memorandum for the Secretary of the Interior
Re: Congressional Subpoena for ExecuQve Branch Document).
'"Id. at 67.
■°5 Op. Off. Legal Counsel 27 (1961), reprtrded at Watt CorxtempI Hearings, supra note 5. at 104.
•Wd. at 105.
"Id at 106.
"Id. at 107.
•«;<t at 105.
«kt at 108.
"Wan CorUerript Hearings, supra note 5, at 106.
"Id at 260-266.
"Jd. at 109.
*JcL at 111-115.
»>kL at 133-258.
180
15
Congressional Access to Agency Information
Watt announced that he had reached a decision on Canadian reciprocity favorable to
Canada. 9' The next day. on February 3. Watt turned over 19 of the 31 contested documents
on the ground that his reaching a final decision obviated further nondisclosure." Six days
later, the subcommittee's DemocraUc majority. Joined by Its ranking Republican member,
voted to hold Watt In contempt and to report its resolution to the full Energy and Commerce
Cominlttee.93
With total compliance still not forthcoming, the full committee, on February 25. 1982.
likewise voted to recommend that the House cite Watt for contempt.9* This final committee
action, and the virtual certainty of its approval by the full House, finally ebclted settlement on
the eve of the House vote. The White House agreed to permit subcommittee members four
hours to review personally and to take notes on the remaining 12 dociiments. The
documents would be reviewed on Capitol Hill, but remain within the custody of the execuUve
branch. No staff personnel could review the documents, and no photocopying would be
permitted. «
The immediate Interests of both branches In the Watt imbroglio are superficially clear.
The subcommittee wanted full access to information that might shed light on the usefulness
of the MLLA reciprocity process to deal with the alleged problem of unfair Canadian policy,
and to consider the need to amend the MLLA or to take retaliatory measures. The executive
branch insisted that nondisclosure was essential to the integrity of Its deliberative processes
and foreign policymaking generally. Presumably, once Secretary Watt reached his final
decision, the executive branch's interest In reaching that decision without distortions wrought
by premature disclosure of internal deliberations was eliminated. The executive branch
would retain, however, a generalized interest in protecting its deliberations and In
maintaining confidences necessary to the successful conduct of foreign relations."
From a broader perspective, it is manifest that both branches perceived the Watt dispute
in a wider legal and poliUcal context. Rep. Dlngell. the subcommittee chair, was also chair of
the full Committee on Energy and Commerce. From his vantage point. Watt's refusal to
comply with the request for MLLA documents likely appeared part of a larger pattern of
noncooperation between Watt and Congress over confidential information.*" On the executive
branch side, the Attorney General's vigorous defense of executive privilege occurred against
the backdrop of a broader effort led by the Department of Justice to buttress executive
branch control over the outflow of information generated within the executive branch."
Smith's opinion is notable, for example, for the breadth with which it attempts to establish a
presumptive right of the executive branch to withhold deliberative documents from
congressional committees.
Personality factors may also have aggravated the dispute, although it Is hard to tell how
much so. Secretary Watt was widely believed a zealot for Administration policy: Rep. Dlngell
*>JcLat318.
"H.R. Rep. No. 898. 97th Cong.. 2d Sess. at 7.
'BWatt Contempt Hearties, supra note 5, at 295-296.
»*ki. at 368-370.
"id at 385-386.
"5 Op. Orr. Ugal Counsel 27. 29 (1981).
"H.R. Rep. No. 898. 97lh Con£.. 2d Sess. at 66-67 (statemenl of Reps. MofTett. Ottlnger. Scheuer. Waxman. and
Markey).
"See. e.g.. the Attorney General's mocatJon of former Attorney Generals CrllTln Bells restrictive policy
concerning the circumstances under which the Justice Department would defend agencies nondisclosure of records
under the Freedom of Information Act, WASH. POST. May 5, 1981. at Al 1. col. 1: and the Issuance of a national
security directive strengthening the nondisclosure obligations of certain persons with access to classlHed Iriformat^on
and subjecting such employees to possible polygraph examinations In connection with investigations of leaks.
National Security Decision DirecOue 84: Hearir^ Bejore the Senate Comm. on Couenvr^ntal Affairs. 98th Cong.. 1st
Sess 85-90(1983).
181
1 fi
Peter Shane
Is widely perceived to be among Congress's most powerful and aggressive members." The
public communications to Dlngell and the subcommittee from various Department of Justice
officials assumed no pretense of deference.'") The final committee report hints of personality
problems at the staff level, as well.'oi Nonetheless, in colloquies between Dlngell and Watt,
and between Dlngell and Rep. Marc Marks, ranking Republican on the Dlngell subcommittee,
the parties were at pains to emphasize the nonpersonal nature of the dispute. '<«
It may be that the AdmlnistraUon was destined, because of the size of the Democratic
majority in the House, to lose this executive privilege battle, but It is also possible that the
executive branch might have achieved Its goal of delaying subpoena compliance without
losing so much good will In the process. Notwithstanding the strong DemocraUc majority.
Secretary Watt, an unpopular figure, did succeed In forestalling any release of the contested
documents until he had made the decision that the subcommittee wanted to oversee.
Furthermore. President Reagan's declared Interest in nondisclosure was facially more
compelling as a constitutional argument than the positions proffered, respectively, by the
Ford and Carter Administrations In the Morton and Duncan disputes, discussed above.
A reasonable hypothesis might be that at least four factors over which the Administration
had some control helped to galvanize the opposition to Watt. First, Watt had been Injudicious
In his attempts to control information in other disputes with the Energy and Commerce
Committee, and had weakened his credibility generally. Second, the Attorney Generals legal
opinion was extremely broad m its Justification of nondisclosure to Congress, and some
arguments were sure to be seen as overreaching. Third, the Attorney General may have
exacerbated his own credibility problem by refusing to defend the opimon personally. Fourth,
lower level executive branch officials and legislative staff apparently did not enjoy uniformly
good relations. It may have been, of course, that the executive branch viewed the
subcommittee investigation - and the House, in general -- with as much distrust as the
subcommittee majority focused on Secretary Watt. The ultimate strength of the Democratic
majority, however, provided a hedge that the Administration did not have against
miscalculations made In the course of negotiations.
In sum. the Watt dispute does not appear to have been an efficient process for achieving
an appropriate level of disclosure to Congress in a way that preserved the branches' ongoing
relationship. The subcommittee ultimately prevailed in achieving access to all contested
information and the Administration succeeded in resisting disclosure during the
declsiormiaklng process regarding Canada, but the Administration suffered significant and
urmecessary damage to its credibility.
"C/. Peterson. Now Its Creetlnggau: EPA Strikes Back wUh a 'Dingeilgram' of Us Oum. WASH. POST NATL
WEEKLY EDITION. Feb 10. 1986. al 14: Nash. The Power oj the Subpoena. N. Y. TIMES. Mar. 11. 1986. al 24, col. 4
(describing Dlngell as 'perhaps Capitol Hills most zealous investigator and Issuer or subpoenas'l.
'""E-g.. Letter from Assistant Attorney Genera) Robert A. McConncIl to Hon John D. Dlngell (Dec 8. 19811.
reprinted tn Wan Coruempt Hearings, supra note 5, at 263-264.
'O'H.R. Rep. No. 898. 97th Cong.. 2d Sess. at 68-69 (Sutement of Reps. MofTett. OtUnger. Scheuer. Waxman. and
Mar key).
t02watt Coruempt Hearings, supra note 5. at 89 (colloquy of Rep. Dlngell and Secretary Watt). 286-287
(sutements of Reps. Dtngell and Marks): but see H.R Rep. No. 898, 97th Cong., 2d Sess. at 68-69 (Statement of
Reps. MofTett, OtUnger. Scheuer. Wcucman, and Markey) (attributing Sccretaiy Watt's response to the Committee. In
part. Id 'ego." "pique." and "personal arrogance.')
182
Congressional Access to Agency Information
4. EPA Administrator Anne Gorsuch. 1982-83: Executive Privilege and
Civil Law Enforcement
The second well-publicized executive privilege dispute between Congress and the Reagan
admlnstratlon Involved Anne Gorsuch. '<» the former Presidents first Administrator of the
Environmental Protection Agency, who became the first head of an executive branch agency
to be held In contempt of Congress while in office, "x The Impetus for the contempt citation
was Gorsuch's refusal to d^/ulge certain documents to the Investigations and Oversight
Subcommittee ("the Levitas subcommittee") of the House Committee on Public Works and
Transportation, In connection with that subcommittee's investigation of EPA's administration
of the so-called "Superfund ' for the cleanup of hazardous waste dumping sites. The White
House settled the dispute with the subcommittee on February 18. 1983,'<» slightly more than
two weeks after a federal district court refused to review the legality of the House contempt
citation prior to its enforcement.'"
The Comprehensive Environmental Response, Compensation and Liability Act of 1980.
commonly known as the Superfund Act."" created a $1.6 billion trust fund to be used for
financing the cleanup of hazardous waste sites and spills of hazardous chemicals. Among
other things, the Act authorizes the Government to act to control a hazardous waste situation
when a responsible party either cannot be identified timely, or cannot act. Parties responsible
for hazardous waste or chemical spill sites are required to reimburse the Government for
cleanup costs and damages to natural resources: noncooperating parties may be fined treble
damages. By executive order. President Reagan delegated his funcUons under the Act to the
EPA Administrator, who was also designated the responsible ofQclal for enforcement of the
Act."*
In 1982. several House subcommittees commenced Investigations of various aspects of
EPA's Superfund enforcement. The Levitas subcommittee. In March. 1982. commenced a
general Investigation of hazardous and toxic waste control, focusing on the Impact of such
wastes and their control on American ground and surface water resources."® Of special
concern were an EPA decision to suspend its prior restrictions on disposing containerized
liquid wastes in landfills that might permit the migration of such wastes to ground and
surface waters, and allegations that the EPA was not adequately enforcing the Superfund
provisions against parties responsible for hazardous waste sites."" On September 13 and 14.
1982. subcommittee staff requested access to EPA's files on enforcement of the Superfund Act
and related statutes in so-called Region II.'" Despite an early assurance of access. "^ EPA
subsequently Informed the subcommittee that it would not make available certain materials
'"^During the pendency of the dispute recounted here. Anne M. Corsuch remarried and changed her name to
Anne M. Buribrd. Because the earliest documents discussed herein refer to her only by the name "Gorsuch.' that
name Is used exclusively throughout this article for consistency.
"XH.R Rept. No. 435. 99th Cong.. 1st Sess. 3 (1985).
'OSWASH. POST. Feb. 19. 1983. at Al. col. 6. The terms of the f\naJ settlement were embodied In a March 9,
1983 memorandum signed by Reps. Dingell and Broyhlll and Counsel to the. President Fred Fielding. EPA DcxunKru
Agreemenl: Memorandum of Undentandlng, 41 CONG. Q. 635 (1983). For another account of the Gorsuch
confrontation, sec Note. The ConJUcl Between Bjiecuttue PriuCege and Congressional OversighL Tfw Corsuch
CofUTDuersy. 1983 DUKE l_J. 1333. 1334-1338(1983).
'"United Slates v. House of rfeprcsentaUwcs of the United States. 556 K. Supp. 150 (D.D.C. 1983).
'<'T>ub. U No. 96-510. 94 Slat. 2767 (1980).
•"Exec. Order No. 12.316. 3 C.F.R 168 (1982). reprinted (n 42 U.S.C. 9615 al 1444-45.
109
H.R. Rep. No. 968, 97th Cong.. 2d Sess. 7 (1982).
"O/d.
'"/dat 11.
"2;d. at 13-14.
183
Peter Shane ^®
in enforcement flies connected with active cases.'" jhls dispute eventuated In the contempt
citation against Administrator Gorsuch.
At almost the same Ume as the Levitas subcommittee staff requested access to EPA files
on Region n, the Oversight and Investigations Subcommittee ("the Dlngell subcommittee") of
the House Committee on Eneigy and Commerce requested documents relating to several
hazardous waste sites outside Region II. on which that subcommittee's InvestlgaUon of
enforcement effectiveness was focusing. 'n Although the DlngeU subcommittee's Investigation
did not spawn any contempt citations of Its own. the coexistence of different EPA oversight
hearings and demands for access to enforcement flies seems to have been crlUcally Important
to the dynamics of the Interbranch negoUaUon over the Levitas subpoena. The broader range
of interested parties made negoUaUon more difficult because of the greater number of persons
to satisfy, the greater likelihood that congressional access to EPA files would undemiine
execuUve control generally over the outflow of InformaUon on Superfund investlgaUons. and
the Involvement of more strong personalities, including Rep. Dingell. Secretary Watt's
successful opponent, "s
After the Levitas subcommittee staff, in September. 1982, demanded access to EPA
enforcement flies, two weeks of unsuccessful negoUaUons ensued at the staff level, "e EPA
offered to permit staff access to Its files, subject to prescreenlng by an EPA official to maintain
the confldenUality of sensitive documents. The offer was declined. On September 30, 1982,
the subcommittee authorized subpoenas to issue for the requested documents.'"
Throughout most of October, 1982. service of the subpoenas was postponed under EPA
assurances of cooperaUon."* EPA continued to assert confldentiality for a limited class of
lltlgation-related documents, but then reverted to its poslUon of protecting all "enforcement
sensitive" documents -- apparently as a reacUon to the Issuance of a subpoena by the Dlngell
subcommittee for similar InformaUon. On November 22. 1982, the Levitas subcommittee
served a broad subpoena on Gorsuch. demanding the documents and her testimony on
December 2, 1982. "»
On November 30. 1982. Attorney General Smith released a letter to Rep. Dlngell,
Justifying the AdminlstraUon's refusal to comply with a subpoena for "sensitive open law
enforcement Investigative flles."'»> Smith forwarded the letter also to Rep. Levitas. to explain
EPA's refusal to comply fully with the latter's subpoena, as well.'Z' On the same day.
President Reagan issued a memorandum to Gorsuch directing that she not divulge
documents from "open InvesUgaUve files, (whlchl are Internal deliberative matertals
"»/<i at 15.
114/d.
"SWhether the separate DlngeU InvestlgaUon would have tnade settlement more dtfBcult apart from the alleged
Intransigence of Justice E)cpartment attorneys Is a point Congress disputes. According to the 1985 House Judiciary
Committee report on the EPA dispute, the DlngeU subcommltlec's minority counsel proposed a settlement that was
deemed acceptable by a deputy assistant attorney general In charge of the Lands and Natural Resources Division In
mid-October. H.R RcpL No. 435, 99lh Cong.. Isl Sess. 96-103 (1985). As the Judiciary Committee dissentere note,
however. It is unclear whether this ofTlclai ever told any other member of the JusUce Department of the minority
counsel's proposal or of his own reacUon lo It. id. at 737-38. 777-78.
""H.R. Rep. No. 968. 97th Cong.. 2d Sess. 11-13(1982).
"^/d. at 13.
"•/d. al 13- IS. Hazcurious WasU ConUmiinatlixxoJWaler Resourres-Aaxss Id EPA SupeifwTd Fecords: Hearing
Before the IrwesttgaOons and Ouerslghl Subcomm. of the House Comm. on Ihtbllc Works and Transpon.. 97th Cong.. 2d
Sess. 88 ( 1982) (hereinafter cited as EPA Records Hearing.
"•H.R. Rep. No. 968. 97th Cong., 2d Sess. 15 (1982).
'^OLetter from Attorney Genera) William French Smith to Hon. John D. DlngeU (Nov. 30. 1982). reprinted id. at
37-4 1 {hereinafter cited as Atfy Cen.'s Gorsuch Letter^.
'2'H.R. Rep. No. 968, 97th Cong., 2d Sess. 36 (1982).
184
Congressional Access to Agency Information
containing enforcement strategy and statements of the Government's poslUon on various legal
Issues which may be raised In enforcement actions . . .."'»
The Attorney General articulated a series of JustlflcaUons for the nondisclosure of open
investigative files: forestalling pollUcal Influence over the conduct of an Investigation
preventing the disclosure of Investigative sources and methods, protecting the privacy of
innocent parUes named In invesUgaUve flies, protecting the safety of confldenUal Informants
and maintaining the appearance of "Integrity. Impartiality and fairness of the law enforcement
system as a whole.''^ He indicated that no assurance of confidentiality from Congress would
permit the President to share his responsibility to protect the information In quesUon.i" but
nonetheless articulated one exception to the rule of nondisclosure: "These principles wfll not
be employed to shield documents which contain evidence of criminal or unethical conduct by
agency ofiflclals from proper review. "las
FoUowlng the subcommittee's December 2 hearing. General Counsel Brand, on December
8. issued a legal response to the Attorney General's letter, again challenging each of his
assertions as to the limitations on Congress's oversight authority, i" On the same day
Levltas met with AdmlnlstraUon officials to attempt a setUement. Levltas made the foUowlng
offer Subcommittee staff could review and designate for copying and delivery to the
subcommittee all EPA documents relative to the waste sites at Issue. If EPA or the JusUce
Department designated any document selected for delivery as senslUve. It would remain at
EPA for InspecUon there. If actual delivery to the subcommittee of any of these documents
proved necessary, further subpoenas might issue. All InformaUon disclosed would be treated
as confidential. "7
The Attorney General, the next day. declined the setUement offer, reiterating instead
EPAs original offer of access subject to EPA prescreenlng. The only concession was that
prescreened documents would be withheld ultimately from the subcommittee only after
broad-based and high-level review in the Executive branch, i" On December 10 the fuU
Public Works and TransportaUon Committee responded by recommending. In a party-line
vote, that the House hold Gorsuch In contempt. '»
Six days later, the House overwhelmingly approved a resoluUon to certify Gor^uch's
"contumacious conduct" to the U.S. Attorney for the District of Columbia. >3o Prior to the
actual certlflcaUon. the JusUce Department filed an extraordinary suit in federal dlstrtct court
to enjoin further acUon to enforce the subpoena on the ground of Its unconsUtuUonallty."i
The District Court on February 3. 1983 dismissed Uie JusUce Department's suit on the
ground that any consUtuUonal Issue raised by the subpoena could be resolved in a Judicial
proceeding brought to enforce the subpoena. '» With the U.S. attorneys ofllce still inslsUng
that It was not bound to enforce the subpoena.'" Uviias and Reagan reached agreement on
'"/d at 42-43.
^'^Atty Oen-'s Gorsuch Letter, supra note 123. at 38.
"<;d. at 39.
'»/<±at41.
l»6Hou$« General Counsel's Memorandum, supra note 6. at 58-64.
"m.R. Rep. No. 968. 97lh Cong., 2d Scss. 20-21 (1982).
'"/d. at 2 1-22
'"Id. at 23. See also Id at 72-76 (dlsscnUng statemenl of Republican committee membeni).
"ODavls, Gorsuch Contempt Charge Puts Focus on Enforcenvnt of Hazardous Waste Laws 40 CONG O 3162
(1982). ■
"'Davis. Legal ShouxJouwiEscaicUing In CorsuchConJempf Case. 41 CONG. Q- H (1983).
"^United States V. House of RepresenUUvcs of the United Sutcs. 556 F. Supp. 150(D.D.C. 1983).
'"It appears that the decision not to proceed with the contempt citation was made Independently by the U.S.
attorney for the District of Columbia. H.R. Rept. No. 435. 99lh Cong.. Isl Sess. 19 (1985). That decision, however,
reilected long-standing Justice Department policy. Memorandum from Theodore B. Olson. Assistant Attorney
185
20
Peter Shane
February 18. 1983 that the subcommittee would receive edited copies of all relevant
documents and a briefing on their contents, and then would be permitted to review any
requested unedited documents In closed session.'"
Although the February 18 settlement resolved the LeWtas dispute, it did not end the
overall imbroglio. Still pending were subpoenas from the Dlngell subcommittee, which now
asserted that Its InvesUgaUon was focusing on specific allegaUons of misconduct by EPA
officials. 135 Rita Lavelle. the Superfund administrator and the most prominent of these
officials, was dismissed on February 7. 1983 by the President amid allegations of her perjury
to Congress and Improper administration of the trust fund. '^
Following the agreement with Levitas on February 18. further disclosures of possibly
criminal conduct at EPA made prolonged resistance to the Dingell subpoenas politically
Impossible."' On March 9. 1983, Anne Gorsuch resigned as EPA administrator.'" and the
White House agreed to deliver all subpoenaed documents to the Dlngell subcommittee,
subject to certain limited protections for the confidentiality of enforcement-sensitive
materials. "«
The Gorsuch episode is striking because, in defending nondisclosure, the executive
branch was protecting more specific and more obviously legitimate concerns than had been
articulated In connecUon with the Watt matter. These were further identified in a December
14. 1982 memorandum to the Attorney General from Theodore B. Olson. Assistant Attorney
General in charge of the Office of Legal Counsel, who hinted at concern that members of
Congress obtaining access to law enforcement files "might have relationships with potential
defendants" in EPA enforcement actions. '«> What weakened the case for nondisclosure was
not the implausibillty of the executive's articulated position, but the strains on the executive
branch's credibility wrought by the Watt affair'*' plus the credibility of the growing allegations
that EPA officials were guilty at least of mismanaging the Superfund program.
In retrospect, a strong possibility appears that the protracted, even bitter quality of this
dispute over information was fueled by a failure of communication between the Dingell
Cencral In charge of the Odlce of Legal Counsel, for the Attorney General. Re: Whether the United States Attorney
Must Prosecute or Refer to a Grand Juiy a CItadon for Contempt of Congress Concerning an Executive Branch
Oflldal Who Has Asserted a Claim of Executive Privilege on Behalf of the President of the United States 29-31 (May
30. 1984). reprinted Id. at 2544. 2584-86.
'**See supra note 105.
i3S£pA.. inDesOgatlon of Superfund and Agency Abuses (Part One): Hearings Bejore the Subcomm. on Oversight
and Irwestigaiions of the House Comm. on Energy ar\d Corm^rxx, 98lh Cong., Isl Sess. 1-7 (1983) (hereinafter dted
as Dingell EPA Hearings].
'^Reagan Orders Investigation of EPA Charges. Wash. Post. Feb. 17. 1983. at Al. col. 1.
"■^Tie House Judiciary Committee concluded from Its Investigation that the disputed documents contained
sufnclenl "signposts" of wrongdoing that the executive branch should have recognized earlier than February. 1983
the untenablllty of the privilege claim, even under the execuOve branch's view of privilege. H.R Kept No. 435. 99th
Cong., 1st Sess. 9-10 (1985). The report does not allege, howrver. that the executive branch withheld the documents
after the relevant ofUctals had actual knowledge of likely EPA wrongdoing, only thai the olHclals should have
Investigated the alleged "signposts" more thoroughly. Id. at 140.
'"Burford Quits As EPA Administrator. Wash. Post. Mar. 10. 19R3. at Al.
iMDtngeU EPA Hearings, supra note 1 36. al 37 1 .
"OH.K. Rep. No. 968. 97lh Cong., 2d Sess. 82. 89 (1982). In (act, OLC InvesUgated whether any of EPAs
investigative targets In two areas being scrutinized by the Dlngell subconunlttec were political contributors to Reps.
Dlngell or Mike Synar of Oklahoma. H.R. Rep. No. 435. 99th Cong.. 1st Sess. 124-132 (1985). A deputy assistant
attorney general In charge of OLC "concluded there »vere some potential connections." but "all possible matchups
were not pursued." and no use was made of the Information. Id. at 131.
'''"(Dwo matters-an executive privilege controversy between Secretary of the Interior Watt and prior
Informational poUdes with respect to Congress-. . . appear to be highly relevant to the (Judlclaryl Committee Inquiry
(Into the EPA dispute] because Lhey shaped expectatlons--and perhaps moUvaUons-ln the EPA controversy Itself."
H.R RepL No. 435, 99th Cong., 1st Sess. 26 (1985).
186
21
Congressional Access to Agency Information
Subcommittee and the Justice Department Office of Legal Counsel -- a failure of
communication exacerbated. In turn, by a failure of communication within the executive
branch.
When the Dlngell subcommittee requested Infonnatlon from EPA In September. 1982
concerning enforcement actions at particular sites, the sulx:ommlttee had already focused
Internally on the possibility that political considerations were affecting enforcement
decisions. "= its suspicions were bolstered in October when Lands Division deputy assistant
attorney general Alfred Regnery, In hopes of settling the dispute, permitted the
subcommittee's counsel, Richard Frandsen, to review the documents being withheld from
disclosure to the subcommittee. Frandsen not only spotted a key inculpatory document, but
recognized its significance. '« Furthermore, it appears that EPA staff shared the
subcommittee's concerns. In dealing with EPA employees, the subcommittee staff was
dealing with people who apparently understood quite clearly what the subcommittee was
afler. '« Thus, it Is likely that subcommittee members and staff had tentatively concluded by
early fall that EPA wrongdoing was at Issue and that, at the time the Justice Department was
advising the President to Invoke executive privilege, the negotiators for the executive branch
knew of the subcommittee's concerns and of their seriousness. With these assumptions, it
would be unsurprising for congressional negotiators to Interpret the nondisclosure of EPA
documents as a strong indicator of Justice Department concealment and bad faith.
The subcommittee, however, did not publicly signal allegedly improper political Influence
as the focus for its investigation until December. 1982.'<5 and OLC was not privy to the
suspicions of EPA staff. The subcommittee's unwillingness to share Its suspicions with OLC
thus left the assistant attorney general In charge of that office unaware throughout the fall of
1982 either that improper political Influence might have occurred at EPA or that dcuments
sought by the subcommittee might help prove It. The House Judiciary Committee, later
investigating the episode, "found no evidence" that, prior to February, 1983, Assistant
Attorney General Olson "understood the llncrlmlnatlngl significance of the notes" that the
Dlngell subcommittee had acquired. '«« On the contrary. "Ulhe information that the Judiciary
Committee received strongly indicated that" at the time OLC recommended that President
Reagan Invoke execuUve privilege "Olson and OLC had no idea that the . . . documents
reflected misconduct. "'<^ From Mr. Olson's point of view. then, the aggressiveness of the
subcommittee in pursuing 35 documents withheld after the release of 40,000 others was
bound to appear grossly unreasonable.
5. FTC Commissioner Teny Calvani, 1988: Disclosing Deliberations
with Personal Advisers
During early October. 1987, the House of Representatives was set to vote on a proposed
amendment to a new Federal Trade Commission authorization blU that would have
authorized FTC investigations of possible unfair and deceptive acts and practices in the U.S.
'<»H.R. Rep No.435, 99lh Cong.. Isl Sess. 31 (1985) pAllhough ... the Dlngell . . . Subcommltteell had been
Involved In the oversight of EPA acUvlUes well before September 1982. III! had made no public flndlngs or allegaUons
of Impropriety concerning the general administration of the Superfund program During the course of the
controversy, however, there were a number of disclosures that raised questions about possible wrongdoing by EPA
oOldals. Including suggestions that decisions on certain Superfund sites had been made for political reasons."
'<3/<± at 97 99
•«/d. at 32 35. 59.
'<*/<! at 233.
'♦6/d. at 12.
i*^ld. at 140.
187
22
Peter Shane
airline Industry."* The Washington Post, on October 3. 1987, quoted an FTC press release
reporting on a supposed letter from the FTC to the National Association of Attorneys General,
concerning the NAAG's promulgation of proposed State guidelines for regulating the airlines.
The release represented the FTC as having said: "We are unaware of any evidence Indicating
that airline fare advertising, frequent flyer programs, or overbooking compensation policies
are generally unfair or deceptive. ""^ Some House members relied on this statement In
debate, successfully opposing an authorization provision that would have strengthened FTC
oversight of the airlines, 'so
In fact, the FTC had not made the statement. Its letter to the NAAG said: "Unless the
task force has evidence Indicating that airline fare advertising, frequent flyer programs, or
overbooking compensation policies are generally unfair or deceptive, the legal and factual
basis for the draft guidelines are not clear."'si Concerned about the discrepancy between the
FTC's actual and reported statements, the Dlngell subcommittee formally requested that the
Federal Trade Commission supply to It all documents relating to the FTC's letter to the NAAG
and to the press release Issued concerning that letter.
The FTC supplied all the demanded documents, except for the documents of three
commissioners that reflected communications between those commissioners and their
personal advisers. Two of the three commissioners permitted committee staff to Inspect those
documents in the commissioners' offices, although the>' Indicated that the papers in question
did not have any information connecting the FTC comments for the NAAG with Congress's
pending consideration of legislation about airline regulatory authority. '^2 The third.
Commissioner Calvanl. initially refused to comply on grounds of privilege, asserting also that
the relevant documents In his possession indicated nothing pertinent to the committee's
concerns.'" Following four months of correspondence and meetings between the
commissioner and committee staff, the subcommittee formally served a subpoena for his
documents.'" Under protest, he complied at a subcommittee hearing three weeks later. 'ss To
the Commissioner's personal knowledge, none of the documents he produced prompted any
follow-up by the subcommittee. '*«
6. 1989 Oversight of the Internal Revenue Service
During July, 1989, the Subcommittee on Commerce. Consumer and Monetary Affairs of
the House Committee on Government Operations held hearings regarding alleged corruption
In the Internal Revenue Service. '^7 Among other things, the hearings targeted an alleged
Incident In which an IRS offlcial agreed to audit the economic competitor of an individual who
had bribed the official. 'se In preparation for the hearing, the subcommittee asked the IRS for
all tax information it had relating to the putative victim of the scheme.
'♦^Subpoenaed Documents Jrom Federal Trade Commissioner Terry CalvanL Hearing Before the Subeomm. on
CAjerslghl and IrwesOgatlons ojthe House Comm. on Energy and Commerce. 100th Cong.. 2d Scss. 5 (1988).
'«»/dat 1-2.
'SO/d at 2. 10.
'*'/d. at 2.
'M/d. at 3.
iss/d.
'«/d
'SS/d at 46.
'S^elephone Interview with Federal Trade Commissioner Terry Calvani, In Washington. DC. (Jan. 8. 1990).
'*''/RS Senior Employee Misconducl Problems: Hearir^s Be/ore the Subeomm. on Commerce. Consumer and
Morvtary Affairs ojttv House Comm. on Coverrvnent Operatior\s. lOlsl Cong.. 1st Scss. (1989).
'S*rhe facts reported in this subsection are all derived from an Interview with Peter S. Barash, staff director of the
Subcommittee on Commerce. Consumer and Monetary AlTalrs of the House Committee on Government Operations. In
Washington D.C. on Aug. 3. 1990.
188
23
Congressional Access to Agency Information
This episode Is noteworthy because the branches reached a fairly expeditious and
nonconfrontatlonal settlement despite two ordinarily strong obstacles to disclosure. The first
Is the general statutory bar to the disclosure of tax returns and tax return information. The
statute at issue authorizes disclosure to most congressional committees pursuant only to a
resolution of the house of Congress of which the committee Is a part.'SB The subcommittee
eliminated this barrier, however, by obtaining the taxpc^ -'s waiver of the nondisclosure
provisions with respect to the subcommittee. The IRS Commissioner did not find that the
resulting disclosure would "seriously impair Federal tax adminlstratlon,"'6o thus clearing the
way for subcommittee access under the statute.
The second obstacle was Rule 6(e) of the Federal Rules of Criminal Procedure, prohibiting
the disclosure of Information that is part of a grand Jury investigation. Although, in the
course of negotiations, the Justice Department cited 6(e) as a ground for nondisclosure, the
Department did not formally invoke the rule when the subcommltee made clear its intention
to subpoena the information, if necessary.
Despite these obstacles and the sensitivity of the subject matter, the subcommittee
agreed with the Internal Revenue Service that (1) staff would have access at IRS to all the
information requested, (2) staff could takes notes on the documents, (3) the documents would
remain within BRS custody, and (4) the subcommittee would not publicly rely on any data
garnered from the documents unless it was confirmed from another source.
7. Intelligence Committees: A Modus Operandi
The three subcommittees Involved In the four previous episodes are devoted exclusively to
oversight. They are thus relatively distinctive in the depth of their experience with the
nuances of information exchange, and in the degree to which their watchdog role Is undiluted
by their political identification with particular programs they helped to design and enact.
Even subcommittees devoted exclusively to oversight, however, generally proceed with their
investigations without the benefit of detailed rules governing the exchange of Information with
the executive branch.
The two oversight committees that are exceptional in this last respect are the Senate
Select Committee on Intelligence and the House Permanent Select Committee on Intelligence.
The requirement that these committees be "fully and currently Informed" of all intelligence
activities appears in statute, ■"■ as does a requirement that:
the House of Representatives and the Senate. In connection with the Director
of Central Intelligence, shall each establish, by rule or resolution of such
House, procedures to protect from unauthorized disclosure all classified
Information and all Information relating to Intelligence sources and methods
furnished to the Intelligence committees or to Members of the Congress under
Ithcstatutel.""
Pursuant to this provision, the Houses of Congress have adopted similar rules that amount to
a unique modus operandi for the sharing of infonnallon between the branches. In their key
provisions, the rules of each House provide that:
'"28U.S.C. §6103(0.
'«>26U.S.C.§ 6103(e)(7).
'6'50U.S.C. 8 413(a)(1).
•"50U.S.C. 8 413(d).
189
Peter Shane
24
1. Committee employees must agree In writing to abide by committee rules
and must receive an appropriate security clearance before receiving access to
classified Information: >»
2. Members of the committees are forbidden to disclose Information
Individually If the rules provide that such information may be released only
pursuant to committee vote;>««
3. The President may object to a committee vote to disclose properly classified
information submitted to It by the executive branch. In which case the
Information may be disclosed only pursuant to a vote of the entire House; '«*
and
4. The committees may regulate and must record the sharing of Information
made available to them with other committees or with any Member of Congress
not on the committees.'*
In an interview. Brltt Snider, general counsel to the Senate Select Committee on
Intelligence, expressed the view that his committee has enjoyed a generally smooth
relationship under these rules with those departments and agencies Involved In Intelligence.
Mr. Snider attributes the success of the relationship to at least seven factors:
1 . The existence of an orderly process through which the executive can object
to the release of Information;
2. A tacit understanding that the committees will not ordinarily seek to
discover the identifies of particular agents:
3. Agency understanding of the role that the committee plays in bolstering the
Intelligence community's credibility in Congress and its ability to win support:
4. A generally bipartisan sense of shared objectives;
5. The relative stability of the membership on the congressional staffs;
6. Systematic contact between the committees and the leadership of each
House, which is represented on each committee ex oHicio: and
7. The regularity with which it is possible to seek higher level review within the
bureaucracy for staff refusals to disclose information to the committee. '^
'"Standing Order of the Senate on the Select Conunltlee on Intelligence Iherdnafter, Senate Intelligence
Convniaee Orderi. § 6. reprinu-d In S. COMM. ON RULES AND ADMINISTRATION. SENATE MANUAL. S DOC. No 1.
lOOth Cong., 1st Seas. 141 (1988) Iherelnafter, Senate ManuaH: House of Representatives Rule XLVIII Iherelnafter.
House InteUlgence CommUtee Rule\. § 5. reprinted In W.H. BROWN. CONSTnVTION. JEFFERSON'S MANUAL. AND
RULES OF THE HOUSE OF REPRESENTATIVES. H.R. DOC. 248. lOOlh Cong.. 2d Sess. 756 (1988) (hereinafter.
JeJJeraon's Manual].
'"^Senate InteUlgence Committee Order, g 8(a). reprlrued In Senate Manual, at 142: House Intelligence Committee
Rule, g 7(aJ. reprlrued in JeHeraon's Manual, at 757.
'"^Senate InteUlgence Committee Order, g 8(b), reprlrued In Senate Manual, at 142-43; House Intelligence
Conunlttee Rule, g 7(b), reprinted (n JelTerson's Manual, at 757-59.
'"■Senate InteUlgence Committee Order, g 8(c). reprlrued In Senate Manual, at 144: House InteUlgence Committee
Rule, g 7(c). reprinted In JelTerson's Manual, at 760.
'•'Interview with Brltt Snyder, staff director and general counsel to the Senate Select Committee on InteUlgence.
in Washington, D.C. (Aug. 1. 1990).
190
25
Congressional Access to Agency Information
Several members of the executive branch who have been involved In national security matters
Independently express agreement with Mr. Snlder's view.
Taking the collective experience of the Intelligence committees as a single case study,
however. Illustrates the knottiest conundrum In analyzing the success of the branches'
Information sharing processes from a wholly procedural perspective. Mr. Snlder's
observations support the view that, when the intelligence committees demand Information,
ther« Is reason to believe that the transaction costs for obtaining the Information will not be
unduly high. This Is not to say. however, that the committees will get all the Information that
sound policy making requires. The committees may not be able to Identify the Information
they should have, and the executive may seek to circumvent Its statutory obligations to take
the Initiative In informing Congress of Intelligence-related matters.
These dangers were dramaUcally Illustrated, of course, by the so-called Iran-Contra
affair. In which the executive branch structured Its covert programs for selling arms to Iran
and diverting profits for the aid of the Nlcaraguan resistance In order to prevent congressional
oversight.'" The congressional committees Investigating the affair found: The statutory
option for prior notice to eight key congressloruil leaders was disregarded throughout [the
Iran-Contra episode), along with the legal requirement to notify the Intelligence Committees In
a timely fashion.'"'"* The committees were unanimous "that ofilclals of the National Security
Council misled the Congress and other members of the Administration about their activities
In support of the Nlcaraguan Resistance.""'^
Moreover, some observers believe that, putting aside executive malfeasance, the modus
operandi of the Intelligence committees helps to Insure an underlnformed Congress. The
stability of relationships between these committees and the agencies that they oversee may
foster leniency in oversight. Intelligence agencies may use the information access they
provide to the Intelligence committees to resist access to other committees that properly have
Intelligence-related matters under their JurlsdlcUons.'^' Such resistance occurs despite the
existence of congressional rules stating that Intelligence committee access Is not to be used to
deny access to other committees m appropriate cases. These circumstances promote
suspicion that the mtelllgence committees Identify more strongly with the "cause" of the
agencies than with the goal of democratic oversight of national security policy.
The degree to which committee co-optatlon and the insulation of Intelligence agencies
from other committees' review have occurred Is difficult to assess. Whether such phenomena
have resulted m a Congress less informed than It would be without the mtelllgence committee
system Is probably unknowable. Mr. Snlder's view Is that the difference In the quality of
oversight before and after the creation of the current mtelllgence committees "Is like night and
day. . . .(Nlot another agency m the federal government . . . receives the degree of
congressional oversight given the CIA." Although he acknowledges the possibility that the
intelligence agencies may be less than fully forthcoming, he sees essential safeguards In (a)
the pollUcal cost to the agencies of being discovered withholding Information, and (b) the
experience and knowledge of the committees and their staffs, which support mdependent
Judgments about the poslUons taken by the intelligence agencies. The incentives are
sufficient, according to Mr. Snider, to promote routine agency Initiatives to brief the
committees on new developments. '"
'"See generxiUy Nolo. Unierminl/^ Ctxjgressktnal Oversight of Covert Iruelllgeryce Operutlons: The Reagan
Admlnistmaon Secretly Arms Iran. 16 N.Y.U. REV. L. & SOC. CHANGE 229 ( 1987-88).
>»«H.R Rep. No. 433 and S. Rrp. No. 216. lOOlh Cong . IstScss. 379(1987).
"Old. at 447 (minority report of Rep. Cheney, et at).
'T'lntcrvlew with Charles Ttefer. deputy general counsel to the clerV of the House of Representatives. In
Washington. DC. (Aug. 3. 1990).
'" Letter from L. Brttt Snider, General Counsel. Senate Select Committee on Intelligence, to Professor Peter M.
Shane. University of Iowa (July. 10. 1990).
191
26
Peter Shane
B. Factors Shaping Negotiation
Reflection on these case studies helps to suggest a fairly detailed understanding of the
dynamics of Information sharing between Congress and the executive. The outcome of a
particular demand, as well as the process by which the resolution is achieved, may be
affected by a variety of factors that can be grouped under three broad headings: the stakes
for either branch In receiving or withholding particular Infomiatlon, the existence of avenues
for compromising competing Interests, and the political atmosphere In which the negotiation
win occur.
1. The Competing Stakes and the Avenues for Compromise
The stakes In a dispute over Information may be assessed along several dimensions.
Most generally, what Is at stake for Congress Is the performance of one of Its primary
functions: routine oversight; the contemplation of possible legislation; the review of a
nomination requiring Senate advice and consent; or the Investigation of possible official
wrongdoing. The range of potential subjects within Congress's purview is as broad as the
range of subjects within Its article I and cirtlcle IV regulatory powers. That Is. the range is
limitless.
The executive's desire to control the dissemination of Information Is likely to result also
from a predictable set of concerns. These are:
1. Protecting national defense and foreign policy secrets;
2. Protecting trade secrets of confldentlal commercial or financial Information;
3. Protecting the candor of Intrabranch policy deliberations;
4. Preventing unwarranted Invasions of personal privacy, whether of
government ofllcers. employees, or private persons; and
5. Protecting the Integrity of law enforcement Investigations and
proceedings. "^
If all of what the branches perceive to be critically at stake In a particular dispute bolls
down to a contest between Congress's ability to fulfill one of its primary missions and the
executive's ability to protect one of the routine concerns Just catalogued, the prospects for a
nonconfrontatlonal resolution are good.'7< That is because, between complete acquiescence
In Congress's demand and complete acquiescence In executive nondisclosure, there are four
Intermediate options, each of which permits a balancing of the branches' competing concerns:
1. The executive may provide the information requested, but in timed stages.
A delay In providing infonnatlon might permit the executive to conclude a law
enforcement Investigation or a policymaking process that It does not wish to
subject to premature scrutiny. '"
■'This catalogue of Interests mirrors the various grounds spcxlOcd In the Freedom of Information Act. 5 U.S.C.
g 552(b). for exemptloru from the ordinary rule of mandatory disclosure of executive branch records.
iT^The following analysis Is based. In part, on Shane, supra note •. at 520-29.
iresuch was the de facto consequence of the Watt execuUve privilege dispute. In which full disclosure did not
occur until Secretary Watt had concluded the deUberaOve process with respect to Canada's status under the Mineral
Lands Leasing Act
192
27
Congressional Access to Agency Information
2. The executive may release the Information requested, but under protective
conditions ranging from Congress's promise to maintain confidentiality for the
Information it obtains to congressional Inspection of the material while It
remains in executive custody. Such protective conditions are most helpful
when the executive concern is less with the Initial revelation to Congress and
more with the possibility of subsequent re-dlssemination of the material to
other audiences.
3. The executive may release expurgated or redacted versions of the
Information demanded. Redaction Is obviously helpful In preserving the
confidentiality of Informants, shielding personal privacy, and protecting the
details of Investigative methods.
4. TTie executive may release prepared summaries of the information
demanded. Where the expurgation of existing documents would be Insufficient
to protect Interests In confidentiality, the executive may be able to satisfy
Congress's Information needs by summarizing the information of direct
relevance to Congress. As the A. T. & T. litigation suggests, it Is possible to
give Congress added assurance of the accuracy of the summaries by permitting
selective sampling to compare original documents to the summary
presentations.
Of course, at the same time that the branches are promoting their routine Institutional
concerns, other political factors may come into play. Congressional vigor in Investigating an
unpopular or ill-managed program may boost the political strength of Congress or. In what
amounts to the same thing, may weaken the political stature of the executive. Similarly,
executive nondisclosure may defer or limit the exposure of material that would associate the
executive with a politically unpopular position. It may distract public attention from an
underlying pobcy dispute, and raise the transaction costs generally for members of Congress
intent on vigorous oversight.
Such political considerations may come Into play no matter which party controls either
end of Pennsylvania Avenue: the Democratic Congress's dispute with President Carter's
Energy Secretary illustrates the point. It is reasonable to hypothesize, however, that the long-
term difference In the partisan control of the two branches has significantly increased the
branches' willingness to conduct their institutional competition openly. Demographics and
the pattern of recent electoral results suggest that Republican control of the executive and
Democratic control of Congress are likely to continue.
Even partisan political considerations, however, need not undermine the possibilities for
compromise. Despite the potential political gains for Congress In the IRS investigation
discussed earlier, no confrontation occurred. In part, this may be because the Bush
Administration did not regard the potential results of the investigation as likely to be
damaging to the Incumbent President. The same factor might help explain Secretary Jack
Kemp's cooperation in a congressional investigation of alleged abuses during the Reagan
Years in the administration of the Department of Housing and Urban Development.
These examples of cooperation, however, also reflecl explicit executive endorsement of the
principle that Congress -- as in the IRS matter -- is enUlled lo broad accommodation in its
Investigations of alleged ofTlcial wrongdoing. Putting aside the potential embeirrassment, this
general stance recognizes that a President's willingness to be forthcoming in a corruption
Investigation may prove a political plus for any Administration that does stand to be
tarnished by a particular Investigation. White House cooperation in the Iran-Contra
193
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Peter Shane
Investigation Is also Illustrative on this score. '^ Thus. It may be most accurate to say that. In
the IRS Investigation. Congress and the executive reached a relatively quick agreement
because (1) the Immediate institutional needs of the branches could be accommodated
through a compromise on the form of disclosure, and (2) the potential political gains to
Congress either did not threaten to undermine the President's position, or the executive
lacked any option more politically advantageous than cooperation. This may well be a
common pattern.
In analyzing the stakes In a particular Information dispute, the greatest problems seem
likeliest to arise not because of the branches' different functions or even because of their
short-term political Interests. A problem Is most likely to occur when one or the other branch
behaves as if the stakes in a particular dispute Included an overall adjustment In the
relationship of the two branches.
This phenomenon - a preoccupation with the implications of one disagreement for the
entire Interbranch relationship — seems to have become a conspicuous factor In the
prolongation of the Dlngell-Gorsuch dispute. When the Justice Department first became
Involved, the relevant officials may have focused their attention on the discrete question of
protecting open investigative files in this particular matter. Similarly, the Initial, discrete
concern of Representatives Dingell and Levitas may have been rooting out Improper partisan
Influence In EPA prosecutorial decisionmaking. Fueled by misunderstandings, however,
about the other branch's knowledge and intentions, the negotiators seem quickly to have
shifted their rhetoric to general statements about presidential obligation and congressional
prerogative. Once negotiators begin to act as though that level of principle is implicated in
their disagreement, accommodation becomes vastly more difficult. In the words of former
White House Counsel Fred Fielding: Tf both parties are acting In good faith, you can
negotiate a resolution to any Issue imless or until It becomes an institutional clash. Once
that occurs, resolution Is very difficult because the Issue has changed."'^
2. The Ingredients of the Negotiating "Atmosphere"
Whether the negotiators "get institutional " is influenced. In turn, by other elements of the
negotiating "atmosphere." That atmosphere will vary, first, with the degree to which shared
goals do or do not animate Congress and the executive in the subject matter area that
Congress is pursuing. The successes of the intelligence committees and the success of recent
IRS oversight reflect, in part, a set of shared norms between the elected branches. Both take
the defense of national security sertously. Neither wants to compromise national security
through inappropriate disclosures of confidential information. Each branch Is committed to
the value of official Integrity, and Is aware of the particular sensitivity of tax enforcement in
this respect.
In contrast, the areas of trade and ertvironmental policy implicated In the Morton.
Duncan. Watt and Gorsuch disputes were highly contentious. There are sertous partisan
differences over regulatory policy, undoubtedly exacerbating the disputes between OMB and
'^n May. 1989. the Senate Select Conunltlee on Intelllgrnce Investigated whether certain White House
documents relevant to the lian-Contra matter released during the rrlmtnaJ trial of Oliver North had been provided to
the Iran-Contra Committee and. If not. why the failure occtirred. The Committee determined that the sU documents
had not been provided to the committee, but that there was no evidence to suggest that any of the documenu had
been deliberately withheld. Instead, it appeared that the FBI agents in charge of the original search may nol have
recognized the relevance of the documents. The committee could not determine with certainty whether a seventh
trial document that the Committee had not seen had. In lact. been tnmsmltted. White House records Indicated
transmittal had occurred. SENATE SELECT COMM. ON IintLUCENCE, WERE RELEVANT DOCUMENTS
WITHHELD FROM THE CONGRESSIONAL COMMirTEES INVESTIGATING THE IRAN-CONTRA AFFAIR. lOlst Cong.,
1st Sess. (Comm. Print 1989).
•"Letter from Fred J. Fielding to Peter M. Shane (Jan. 8, 1990) (on fUe with author).
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Congress over access to regulatory material. Iran-Contra - the greatest failure of the
Intelligence committees system - was an executive response to the political certainty that
Congress would not support the President's foreign policy goals. In those areas where policy
contests are hottest, one can expect the most strident claims of congressional prerogative and
the most vigorous executive complaints about congressional "micro-management."
A second critical factor is trust. As noted earlier, a developing distrust between the Ofllce
of Legal Counsel and Congressional staff may have been a significant exacerbating factor In
the 1982 dispute over EPA's enforcement files. Secretary Watt's weakened credibility with the
Dlngell Subcommittee likewise aggravated the tone of their information dispute. By contrast,
counsel to the Senate Select Committee on Intelligence and to the oversight committee
investigating the IRS both cite mutual trust as an Important aspect of their committees'
successful relationship with the agencies they oversee."* In a similar vein. John A Mlntz.
formerly general counsel to the Federal Bureau of Investigation, believes that a new mutual
trust helped the FBI greatly In developing a satisfactory oversight relationship with Congress
in the wake of the 1976 Church Committee investigation Into intelligence abuses. Both the
personal credibility of Judge William Webster as the agency's new director and the relative
stability of staff membership both for the FBI and the Judiciary Committees were critically
important factors, in Mlntz's vlew.'^
A third factor affecting negotiations Is. of course, each branch's perception of the political
risks Involved In pressing hard for Its position. With respect to foreign policy, for example,
the President ordinarily operates against a backdrop of deference to executive branch
Initiative. Many members of Congress, regardless of party, are reluctant to place themselves
In the position of appearing publicly to usurp the President's foreign policy prerogatives. At
least one experienced stciff member In the area of foreign policy oversight reports that this
reality of congressional politics enables the executive to persevere in not sharing Information
on grounds of sensitivity, despite his subcommittee's unblemished record of keeping such
Information confidential. To subpoena such information would typically be Impractical given
the Immediacy of the subcommittee's needs, and the President knows that the chances are
mlniscule of either House of Congress enforcing a subpoena for foreign policy information. In
contrast. Secretary Duncan's dispute with Congress over the oil import fee was short-lived in
part because the Carter Administration, having pledged "open government" In the wake of
Watergate, was ill-equipped to Invoke executive privilege to defend a hugely unpopular
program.
The skill of the particular negotiators Involved is also a factor that necessarily affects the
process. Negotiators may vary In their understanding of the scope of their authority, their
ability to minimize personality conflict, their creativity and Oexlbillty In arriving at solutions,
and In their skill at enabling other negotiators to reach compromise solutions without losing
face.
A related factor is the orientation of each negotiator to his or her task. Negotiators who
are willing to take each problem on Its own terms and work pragmatically toward a solution
may reach quicker agreements than those who psychologically regard each negotiation as an
opportunity to advance broad principles. Negotiators who see a clients success as a
"statement" of their own prestige or value may also be less flexible than negotiators whose
sense of self-worth is less entwined with a client's success.
■^Interview with Brltt Snyder, slaJT director and general counsel U> the Senate Select ComnUttee on Intelligence.
In Washington. D.C. (Aug. I, 1990); Interview with Peter S. Barash. slalT dirvctor of the Subcommittee on Commerce.
Consumer and Monetary AITalrs of the House Committee on Government Operations, In Washington. DC. (Aug. 3.
1990).
■interview with John A. Mlntz. former general counsel to (he Fcdera) Bureau of Investigation, in Washington,
D.C. (Aug. 4. 1989).
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Peter Shane
C. The Persistent Sources of Tension
The catalogue of factors that potenUally shape the quality of a particular negoUatlon
explains why any formally elegant model of that process Is likely to depart significantly from
reality. Although it is easy to Imagine a polar "easy" case>«> and a polar "confrontaUonal"
case. "81 the spectrum of possibilities between those poles Includes an enormous number of
plausible scenarios.
What a review of the law and analysis of the case histories do yield is an understanding
of the different kinds of potential tensions that make dispute resolution difficult. Some may
be uncontrollable: others, not. Some may be eased through formal procedural mechanisms:
others require attltudlnal changes, which, of course, are more difficult to implement.
The two baseline factors that are least likely to change are political competition between
Congress and the President and the existence of background legal uncertainty. Institutional
competition, whether or not colored by partisanship, is an intended aspect of the
constitutional design. Differences in party control of the two brzinches only exacerbate an
inherent tension between the executive and legislative arms of government. The likelihood,
discussed earlier, that courts will not provide any significant number of new decisions
regarding executive privilege helps to perpetuate a state of legal uncertainty In which the
competition of different institutional points of view can nourish.
A related attltudlnal factor that Is also unlikely to change is the difference between the
branches' Initial premises as to the legitimacy of Congressional Interest in the details of
executive branch policy making."" Administrators frequently complain of congressional
"micro-management" -- a Congressional unwillingness to confine that body's attention to
what, from the executive standpoint, is Congress's proper role of legislation and general policy
oversight. The executive chafes at what It believes is Congress's unwillingness simply to live
sensibly with the breadth of discretion Congress confers on administrative agencies.
Congressional representatives, however, tend to dismiss "micro-management" complaints
as undervaluing the constitutionally intended legislative primacy in domestic affairs.
Congress, from this point of view, has become more interested In "micro" issues because
Presidents have (1) attempted to assert more direct presidential control at the "micro"
decisionmaking level, and (2) Implausibly defended the scope of their unilateral policy making
authority under article II of the Constitution. FYom this standpoint, "micro-management" is a
necessary counterweight to the Imperial Presidency. Despite this difference in
perspective, certain shifts of attitude - even against a background of uncertainty and
competition -- could ease negotiations significantly. There are areas in which each branch
perceives that its Institutional interests are so chronically underwelghed by the other branch
that an agreement to focus conciliatory attention on Just these four areas would, if
practicable, have a significant impact.
'8*^1110 easiest case would be a dispute In which (1) the branches are pursuing compatible functions. (2)
compromise mechanisms are easy to Identify. (3) the InformaUon at Issue Involves a policy area In which the
branches shared values predominate. (4| the negotiators trust one another. (5) It appears risky to be obstreperous.
(6) the negotiators are skillful, and (7] the negotiators are pragmatic.
'*'The ^vorsl case' would be a dispute In which (11 each branch is protecting a sensitive function. (2) It Is difficult
to Identify a mechanism for compromise. (3) the Information at Issue Involves a hotly contested policy area. (4| the
negotiators are unfamiliar with one another or mutually distrustful, (5) neither branch sees great political risk In
pushing hard for lu position. (6) the negotlalors are not exceptionally sklU/ul, and (7) the negotiators tend to worry
more about principle than piT>blem-solvlng.
iMpor a helpful discussion of the scope of congressional oversight and the variety of perspectives as to Its quality
and Intensity, see NATIONAL ACADEMY OF PUBUC ADMINlSTflATION, CONGRESSIONAL OVERSIGHT OF
REGiaATORY AGENCIES: THE NEED TO STRIKE A BALANCE AND FOCUS ON PERFORMANCE (Undatedl.
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Congressional Access to Agency Information
Congress's chronic procedural complaint is that the executive ignores (or excessively
manipulates) the importance to Congress of promptness in providing information. Because
most significant legislation requires a hearing process in both Houses, committee mark-up In
both Houses, floor debate In both Houses, a conference committee reconciliation, and further
floor debate before final passage, the two-year lifespan of Congress substantially limits the
time frame in which members can hope to be effective In pushing new legislative initiatives.
Additionally, because It Is dlHlcult to sustain attention to any particular problem — whether
public attention, media attention, or the attention of a member's colleagues — a
subcommittee engaged either in oversight or legislative deliberations may feel pressed to act
within a short time frame when the issue Is "hot." Because of this reality, the appearance of
executive temporizing Is always likely to provoke congressional resentment.
Congress's chronic substantive complaint Is the executive's unwillingness to be more
forthcoming In the sharing of foreign policy and national security information. Despite
occasional episodes of congressional initiative (or over- Initiative), Congress generally Is
deferential to presidential foreign policy making. Yet, the repeated reluctance to share
Information — oflen explsilned by the executive in terms of both presidential prerogative £md a
fear of leaks — Is a frequent source of frustration to the branch that Is expressly charged with
powers to appropriate funds, to raise an army and navy, to regulate foreign trade, to
Implement International law. and to control Immigration.'" Congress regards Its "leak"
record as better than the executive's and Is, of course, unpersuaded by arguments that the
president is unilaterally charged to formulate all elements of our foreign and military policy.
Administrators also articulate a procedural frustration — the Inability to secure an
adjudication of an Issue of privilege without submitting to a congressional resolution of
contempt. Whether the executive is seriously concerned In this respect Is not obvious,
however: there is, after all, at least some reason to suppose that greater ease in Invoking
Judicial resolutions to Information disputes would ultimately result In less executive control
over information.
The executive's substantive concerns, however, are undoubtedly serious. The first is that
Congress, from the executive standpoint. Is insulliclently sensitive to the delicacy of
information-sharing in the context of civil law enforcement. In seeking Information regarding
criminal law enforcement. Congress appeeirs generally to understand the importance of
privacy, of protecting sources and methods of gathering Information, of shielding the
government's strategic discussions, of not compromising ongoing Investigations, and of
preserving public confidence In the evenhandedness and depollUclzatlon of law enforcement.
The executive perceives, however, that Congress Is not respectful of the same values — even
when they are equally salient — In the context of law enforcement by a cMl regulatory
agency.'"
EbcecuUve employees also believe that Congress underwelghs the negative Impact of
oversight on executive branch deliberations when Congress demands the disclosure of
deliberative documents representing advice to an administrator from that administrator's
personal advisers and Immediate subordinates. This concern looms largest m policy making
areas, such as social and economic regulation, where political competition predominates over
shared values and objectives, and least in such areas as criminal law enforcement, where
'"U.S. CONST., art. I. § 8. cU. 3. 4. 10. 12. and § 9.
'•♦Interview with Robert A. McConnell. former assistant attorney general In charge of the Office of Legislative
Aflalrs. U.S. Department of Jusdce. In Washington. D.C. (Aug. 4. 1989). The best publicized recent example of
alleged Inappropriate Interference by members of Congress In civil law enforcement Involves the intervention by 6ve
Senators with the Federal Home Loan Bank on behalf of Lincoln Savings & Loan, a 'Calling thrtft." Merry. A
Senatorial Effort to Save a Thrift. CONG. Q. June 24, 1989. at 1594. On former Speaker Wright's possible exercise of
undue Influence In dealing with the Federal Home Loan Bank Board, see HOUSE COMM. ON STANDARDS OF
OpnClAL CONDUCT. REPORT OF THE SPECIAL OUTSIDE COUNSEL IN THE MATTER OF SPEAKER JAMES C.
WRIGHT. JR. 101st Cong.. 1st Sess. 192-279(1989).
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32
Peter Shane
shared values and objectives predominate. A number of administrators insist that the
susceptibility of deliberative memoranda to congressional scrutiny has (1) reduced the
willingness of administrators and their support staff to commit their candid positions to
paper. (2) increased the incentive for writing advisory documents In a manner that renders
those documents virtually inscrutable as a public record, and (3) reduces the quality of
decisionmaking by pushing more hard decisions into the context of oral deliberation and
away from written analysis. '»»
It is arguable, of course, that administrators should be indifferent to the political
consequences of exposing their staff's advice to Congressional scrutiny. If that advice differs
from the administrator's ultimate decision or exposes other problems worthy of congressional
investigation, the result will be only that Congress may press the administrator to defend his
or her performance, an event entirely appropriate under our system of administrative
accountability.
What this position may underwelgh, however, is the problem of "agenda overload" for
many administrators. Time is among the scarcest resources in Washington. An
administrator may wish to avoid the production and subsequent disclosure of candid
documents not solely out of apprehension for the political fallout, but also to reduce the time
burden that explaining those documents may entail. Even an administrator confident of
prevailing in the substance of a policy dispute with Congress has incentives to reduce the
burden of oversight in terms of time and effort. Congress perceives arguments of this kind
from the executive as manifesting an unwillingness to "take the heat"; it may be. however,
that 'taking the time " Is also a genuine concern.
In sum. If the object of procedural reform is to reduce the time and stress Involved In
reaching a mutually acceptable resolution of potentially confrontational information disputes
between Congress and the executive, that strategy should optimally Incorporate each of the
following elements:
1 . Enhancing the branches' recognition of veirlous forms in which information
may be shared that may accommodate the branches' respective interests in the
disclosure or protection of Information;
2. Deterring the tendency towards behaving as if the potential stakes In a
particular information dispute included an overall adjustment in the
relationship of the two branches;
3. Trading greater executive willingness to accommodate Congress's time
pressure and its legitimate interests in foreign and national security affairs for
an enhanced congressional willingness to respect the executive's concerns for
ctvll law enforcement and the unnecessary scrutiny of deliberative documents
representing advice to an administrator from that administrator's personal
advisers or from his or her immediate subordinates.
'ssintcivlew with Robert P. BedeU. fonncr Admlnlslrator. Oflice of Federal Procurement Policy, omce of
Management and Budget, In Washington. D.C. (Aug. 2. 1989): interview with John Cooney. former assistant general
counsel, Ofdce of Management and Budget. In Washington. D.C. (Aug. 2. 1989).
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33
Congressional Access to Agency Information
III. SUGGESTIONS FOR REFORM
Over the last twenty years -- but most notably during the Watergate period and following
the Reagan Administration's EPA Imbroglio — numerous legislators and commentators have
offered suggestions for procedural reform In the exchange of Information between Congress
and the executive. '*« Nearly all the proposals that have been discussed Involve (1)
prescriptions for the procedure through which executive privilege Is asserted, (2) resuscitating
Congress's use of Its inherent contempt authority, (3) creating some avenue for the cMl
enforcement of Congress's subpoenas to the executive branch, or (4) strengthening the
current criminal law enforcement prospects, most importantly through the authorization for a
si>ecial prosecutor In executive privilege cases. In contrast to these recommendations for
formal changes in the exercise of the branches' respective authorities, this author, in 1987,
proffered a fairly elaborate scheme for routlnlzlng certain aspects of the informal Interbranch
negotiations that currently take place."'
Statutory proposals to prescribe the procedure through which executive privilege Is
asserted have aimed chiefly at Insuring that responsibility for the Invocation of executive
privilege Is lodged with the President, and that the privilege Is not Invoked by subordinate
officials. President Nixon's 1969 adoption by memorandum of this very procedure, however,
and Its subsequent observance by every President since Nixon, has mooted this strategy as an
avenue for further improvement.
Congress could Increase the pressure for the quick resolution of information disputes by
invoking its inherent contempt power.'" Although the Constitution does not mention
Congress's investigation or subpoena powers expressly, the Supreme Court has inferred both
that Congress has such powers and that. In aid of Its powers. Congress may adjudge for Itself
that a targeted witness or holder of documents Is In contempt of Congress. Upon such an
adjudication. Congress may provide for the mcarceratlon of the contemner within the Capitol
Itself, permitting the defendant to raise any privilege Issues in court through a petition for
habeas corpus.
Use of the Inherent contempt power, however, has obvious disadvantages. '« Although it
does not require the cooperation of other branches, the deliberative process It entails Is still
ttme-consumlng. The spectacle of summ2U-y incarceration Is politically unseemly, especially If
the defendant Is a government official. Congress had enough doubts as to the effectiveness of
the procedure by 1857 to provide by statute for the executive prosecution of "contumacious"
witnesses. Congress has not used the power at all since 1934. '<» Proposals to pennit
a civil declaratory Judgment action or an Injunctive suit to enforce a congressional subpoena
offer a "cleaner" way of adjudicating an Issue of privilege than does the current statutory
'"The various legtslatlve proposals arc discusaed. In some casrs wtlh suggestions for Improvement, In Brand and
Connelly. ConsUDitUanal Confrontations Preserving a Prompt and Orderly Means By Which Cortgress May E>]force
Inuestlgatlue Demands Against ExecuOue Brar^h Offklals. 36 CATII. U. L FEV. 71 (1986): Comment. EnecuQue
PrUXiege and the Congress: Perspectives and Recomnvndatkxts. 23 DE I'AUL L REW. 692 (1974): Committee on CIvU
Rights. EJcecutUie PrluOege: Analysis and Recommendations Jor Congressional Legislation. 29 REC. A.B. N.Y. 177
(1974): Hamilton artd Crabow. A Legtslallue Proposal Jor Resolving ExecuUue Privilege CXspules PreclpUaled
By Congressional Subpoeruis. 21 HARV. J. ON LECIS. 145 (1984): Note. Executive Privilege and the Congresslorvil
Right of Inquiry. 10 HARV. J. ON LECIS. 621 (1973): ami Roscnthiil and Grossman. Congressional Access to
Confidential IrxformaOon Collecled by Federal Agencies. 15 HARV. J. ON LECIS. 74 ( 1977).
'■7See Shane, supra note *.
'"For extensive histories and analyses of Congress's contempt povrer. see J.T. MELSHEIMER. CONGRESS'
CONTEMPT POWER (Congressional Research Sendee Rep. No. 76^152 A) (Aug. 12. 19761: and J.R SHAMPANSKY.
CONGRESS CONTEMPT POWER (Congressional Research Service Ucp. No. 86-83AJ (Feb. 28. 1976).
'"•Brand and Connelly, supra note 185. at 74-77: Hamilton and Grabow, supra note 185. at 151-52.
'"U.C. GRABOW, CONGRESSIONAL INVESTIGATIONS: LAW AND PRACTICE 88 ( 1988).
199
34
Peter Shane
scheme. >»' Under existing law. an executive ofUcer can secure an adjudicaUon of a privilege
claim only by Incurring contempt and raising the privilege issue defensively In a criminal
prosecution, it would undoubtedly be easier for Congress to pursue a civil remedy than It Is
for Congress to Invoke effectively the criminal process as that process Is presently structured.
It should be recognized, however, that the possibility of clvU suit would not likely do
much to change the current atmosphere of interbranch negotiation. Furthermore, It
specifically would not advance the two concerns Congress feels most pressingly, that Is,
executive failure to respond promptly to all Information requests and the executive
withholding of foreign policy Information.
The reason for supposing that the possibility of a congressional suit to enforce Its
subpoena would not much alter the existing pattern of negotiation Is that such suits, as both
branches know, are both time-consuming and uncertain.'" Congress Is not likely to
authorize a procedure under which suits could be initiated based on a subcommittee vote
alone. A full committee vote to authorize suit would require time for the full committee to
deliberate, and to persuade the majority of committee members of the appropriateness of the
suit and, perhaps, of its likely outcome. Additionally, even if suit Is filed under an expedited
procedure, the suit -- and Its possible appeal -- could take months. Such a mechanism
would not be practicable as a routine device for exacting executive cooperation In information
sharing.
Moreover, the areas m which Congress feels most routinely underlnformed -- on
questions of foreign and national security policy — are the areas m which courts are most
likely to be deferential to executive claims of privilege. Despite the lack of support for the
executive's oft-repeated claim of exclusive authority over all matters touching diplomacy,
courts have been reluctant to second-guess particular executive claims that the disclosure of
certain information would compromise intelligence sources or methods, or the confidence of
other nations' intelligence services in our own.
Despite these problems. Congress might think it worthwhile to enact a declaratory
Judgment procedure to accommodate the rare case in which adjudication appears
unavoidable in order to solve an impasse with the executive branch. In principle, pursuit of
such an action should be open either to Congress or the executive once a subpoena issues.
The procedure, even If little used, would be preferable to the currently existing criminal
process.
The fourth set of proposals -- proposals to facilitate recourse to the criminal process — is
also unlikely to alter much the existing pattern of negotiating behavior. Proposals to permit
the appointment of a special prosecutor to pursue criminal contempt charges respond to one
Important problem with the appbcatlon of the current contempt statute to the executive.
When a case against an administrator Is referred by Congress to a United States Attorney,
that official necessarily faces a conflict between the duty to enforce the law and his or her
institutional duties to the Department of Justice. Congress cannot confidently expect the
pursuit of such a prosecution so long as a Department of Justice appointee must conduct the
grand Jury and cmy subsequent trial. Thus, were Congress authorized to apply to a court for
the appointment of an independent counsel, it could eliminate a troublesome feature of the
current system.
Yet, criminal prosecutions are even less promising vehicles for resolving disputes quickly
than would be civil suits. Once an indlctmeni Is filed, the defendant can no longer purge
him- or herself of contempt by complying with the subpoena. '^^ This renders much more
problematic Congress's ability to engage In an efficient bargaining process with the defendant.
'9'E.g.. Unde. "A Republic . . . If You Can Keep If. 16 HASTINGS CONST. LQ. 295. 326 (1989).
'"Brand and Connelly, supra note 185. at 83.
>»»/d. at 77.
200
35
Congressional Access to Agency Information
Further, the courts are not traditionally friendly to criminal contempt actions. To achieve a
conviction, the prosecutor must, of course, prove each element of the statutory offense
beyond a reasonable doubt. Should the defendant be acquitted. Congress has no avenue for
appeal.
There are also strong policy objections to the creation of a special prosecutor mechanism
to resolve executive privilege disputes. Although constitutional objections to Judicially
appointed prosecutors proved unpersuaslve In Morrison v. Olson. '»< Justice Scalla forcefully
explained the potential that the special prosecutor mechanism has for destabilizing the co-
equal relationship of the branches. The Constitution allocates specific tools to Congress for
the purpose of checking the executive — most notably, the appropriations, confirmation, and
Impeachment powers. Permitting Congress at will to prompt the appointment of a special
prosecutor goes substantially further In enabling Congress, at little cost to Itself, to distract
the executive branch from its primary functions and to undermine popular support for the
President.'* when serious indications exist of criminal wrongdoing by executive ofQclals. the
potential for destablllzatlon Is properly overbalanced by the contribution of the Independent
counsel mechanism to preserving the rule of law. It is not obvious that there Is a comparable
public benefit to be gained in Information disputes that would Justify the destabilizing
potential of a special prosecutor in this context.
The various objections to those formal procedural reforms that others have suggested do
not mean that nothing should be done. However unlikely the litigation of these disputes may
be. a declaratory Judgment proceeding would be "neater" than any criminal contempt process.
Congress could also sensibly enact the sorts of protective procedures envisioned in the
Congressional Right to Information Act proposed in 1973.'" That bill obligated committees to
protect confidential information that agencies received from entitles or persons outside the
federal government, and provided that any breach of confidentiality by a member of Congress
would trigger an ethics Investigation. Furthermore. Congress could provide for the physical
security of confidential Information, and permit entitles or persons outside the federal
government who supply such Information to explsUn their interest In continued confidentiality
before any congressional decision to disclose.'"'
If. however, the elected branches are truly to create conditions for more constructive and
less burdensome negotiations, they must focus on procedures that are not dependent on the
courts or on the exercise of contempt power. Based, in part, on this author's earlier study of
interbranch information disputes, the American Bar Association in 1987 endorsed three such
measures for adoption by the elected branches and two areas for congressional study, in
order to facilitate the resolution of disputes over executive privilege in a manner that would
"take account more effectively of the constitutional responsibilities of each branch and
without undue cost to the necessary working relationship of Congress and the Executive. ""»
The ABA endorsed another such measure in 1988. pertaining specifically to congressional
demands for documents revealing communications between administrators and their
personal advisers. '■» These measures, implemented in a manner consistent with the findings
of the present study, promise to do more to redirect the energies of the elected branches in
information disputes than do the categories of procedural reform discussed earlier.
"«108S.Cl. 2597(1988).
'"*C/.. Id. at 2623-25. 2630-31 (Scalia. J.. dIssenUng).
'MS. 2432. 93d Cong.. 1st Sess. 1 19 CONG. REC. 42101 (1973).
'**'Kosenthal and Grossman, supra note 47, at 1 1 1- 1 16.
I88E. Grenler, Report and Recommendation lo the ABA House of Delegates from the Section of Administrative Law
(Aug. 1987).
'99A. Bonneld, Report and Recommendalion lo the ABA House of Delegates from the Section of AdmlnlstraUve
Law (Aug. 1988).
201
Peter Shane ^
The centerpiece of a reform effort that Is not dependent on the courts would be the
negotiation between the branches of a new modus vlvendl to govern information disputes.
This modus vlvendl would have both a procedural and a substantive component. Under the
modus vlvendl. each branch would retain the formal authority to assert in legal proceedings
what it believes to be its consUtuUonal prerogaUves concerning the control of InformaUon. At
the same time, the modus vlvendl would contain agreements aimed at steering negoUaUons
away from categortcal quesUons of prerogaUve -- who Is legally enUUed to what? -- and
toward the pragmatic resolution of immediate disputes.
Toward that end. the agreement should specify at least (a) those interests in the control
of InformaUon that each branch could invoke in negoUatlons. (b) a commitment to Invoke
those interests in highly specific terms should disputes arise, and (c) a commitment to explore
in negotlaUon how the interests of each branch would be advanced or compromised In the
particular dispute by the use of various compromise strategies attempted in the past.
Another important procedural component would be the creation of some mechanism for
systematic recordkeeping concerning the informal resoluUon of execuUve privilege disputes.
This set of agreements has the potential to enhance the branches' recognition of the various
forms to which InformaUon may be shared that may accommodate the branches' respective
interests in the disclosure or protecUon of information, and to deter treating the stakes in
particular Information disputes as if they Included an overall adjustment in the relaUonshlp
of the two branches.
It would not be necessary to Implement such an agreement through statute. Once an
agreement was negoUated. the President could bind the executive branch to its observance
through executive order. Congress could adopt the agreement as part of the rules of each
House. Such mechanisms would enable each branch to escape the agreement should it prove
unworkable.
Yet greater strides could be made to interbranch comity if the agreement, as suggested
earlier, traded greater execuUve wiUmgness to accommodate Congress's time pressure and its
legitimate interests in foreign and naUonal security affairs for an enhanced congressional
willingness to respect the execuUve's concerns for civil law enforcement and the unnecessary
scrutiny of deliberative documents representing advice to an administrator from that
administrator's personal advisers or from his or her immediate subordinates. Such a trade
could be accomplished in a variety of ways.
Congress, for example, could agree -- as recommended by the ABA -- not to subpoena:
from administrative agencies any documents embodying [communications
between administrators and their personal advisersl. except on the basis of a
demonstrated, specific need for such documents. In determining whether such
a need exists, the following factors should be among the criteria considered:
the nature of Congress's interest in its invesUgaUon. the importance to
Congress's investlgaUon of the particular material requested, the nature of the
agency's interest in not disclosing the material, and the availability to Congress
of adequate altemaUve sources of InformaUon.'"
Additionally, it could negotiate understandings regarding the exchange of civil law
enforcement information that show sensltlvlUes similar to those displayed in the context of
criminal law enforcement.
The executive could offer some promise for assuring a quick, good faith response to every
request, plus quick engagement in negollaUons -- perhaps under presumptive deadlines — In
the event of disagreements. The branches could explore increased congressional access to
'""American Bar Association Report No. _ (Aug.. 1988).
202
37
Congressional Access to Agency InTonnatlon
foreign policy Information as a goal, facilitated perhaps by measures akin to those now used
for the sharing of classified intelligence.
Determining the parUculars of these agreements would likely not be easy, but It Is fair to
say that adversaries throughout the world, under Imperatives to cooperate less compelling
than those facing Congress and the President, have reached agreements over even knottier
Issues. That payoff could be considerable, especially if such a modus vtvendl laid the
groundwork additionally for a more bipartisan foreign policy and greater congressional
confidence In executive administration of the laws.
One of the other two areas that the ABA in 1987 recommended for congressional study
was the possible provision for a central body in Congress with continuing responsibility for
negotlaUon In executive privilege negotiations, akin to the responsibility held in the executive
by the Justice Department's OfUce of Legal Counsel. A final area for study was possible
recourse to non-abiding third-party mediation In the most serious disputes. The ABA report,
like the article from which it was drawn, mentioned federal Judges as possible mediators."'
Retired members of Congress and former Presidents are also possibilities.
The first of these ideas could be Implemented by strengthening and perhaps more fully
publicizing to the members of Congress the current roles of the OfRce of Senate Legal Counsel
and the General Counsel to the Clerk of the House. Both oUlces now operate as repositories
of Information about past disputes, and sources of legal counsel to Individual committees.
Any further centrallzaUon of negotiating authority, however, is likely to be regarded as too
significant a departure from norms of congressional procedure to commend Itself to Congress
unless and until there Is a political disaster under the current structure.
The second Idea may well have merit, but would constitute a dramatic Innovation, likely
requiring statutory ImplementaUon. Congress and the executive could quite reasonably
decide that consideration of such a mediation mechanism should be postponed until the
branches had experimented with the structurally less Innovative modus vivendl described
above. The set of pollUcal agreements here outlined is more responsive to the factors
producing success or failure In the case studies described in SecUon n and to the points of
agreement and disagreement articulated In the interviews conducted for this study than are
proposals for resurrecting Congress's contempt power, creating a civil process other than
contempt for enforcing congressional subpoenas, or authorizing the use of Independent
counsel In information disputes.
"'Shane, supra note •. at 529-31.
203
Peter Shane ^
IV. ARE INDEPENDENT AGENCIES DIFFERENT?
If the elected branches decided to negotiate the sorts of agreements described In the
previous section, a difficult issue to resolve would be the scope of those agencies whose
records would be covered by the new modus vlvendl. The branches could, as a matter of
policy, agree to cover any set of agencies they choose. An Interbranch "treaty" on Information
sharing might cover Just the Executive Office of the President and Its components, or Just the
core cabinet-level agencies, or Just agencies with Jurisdiction over environmental policy or any
other constellation of agencies. The various Jurisdictional posslblUtles. however, are not
necessarily of equal appeal in terms of either their policy or principle sense.
One easily Imagined JurisdlcUonal line that does not make a good deal of policy or
principled sense Is the line between those agencies conventionally labeled "executive" and
those convenUonally labeled "Independent." That line, although deeply embedded In
separation of powers folklore. Is unappealing for two reasons. First, recent Supreme Court
opinions cast substantial doubt on the proposlUon that there are constitutionally distinct
categories of agencies called "executive" or "Independent." Second, whether there do or do not
exist good reasons for withholding or disclosing agency Information will rarely have anything
to do with an agency's particular structure.
A. The Unitary Nature of the Administrative Agency
The agencies conventionally called "Independent" are structured in a variety of ways that
are designed to mitigate the influence of partisanship on agency pollcy.»» Among the
common accoutrements of "Independence" are colleglal decisionmaking, staggered terms for
agency administrators, terms of administrative office longer than a single Presidential term,
and quotas on the number of agency members who may belong to either of the major parties.
The ConsUtutlon Is silent on each of these features. Congress has the power to adopt such
features, depending entirely on its Judgment as to what Is "necessary and proper" for the
effective functioning of the agency.
The Constitution does speak at least elllptlcally, however, to a number of Issues that are
relevant to agency structure, taking as an element of that structure the appropriate
relaUonshlp between agency administrators and the President or other elected officials. Most
obviously, the Constitution provides that the President shall appoint all non-inferior
admlnlstraUve officers "by and with the Advice and Consent of the Senate, "^m The Supreme
Court has held this provision fully applicable to the Federal Election Commission, an
"Independent agency." because the FEC is an administrative agency that implements the
authority of the United States."** Thus. Congress may not. by labeling an agency
"Independent." deprive the President of his appointments role.
Second, the Constitution -- as read by the Supreme Court since Myers v. United States^os
" limits the permissible scope of Congress's power to participate in the removal of any officer
of the United States. Congress may remove an officer of the United States only through
impeachment. So long as Congress permits an administrator to Implement the authority of
""Shane. Independent Pollcymaklr^ and Presidential Power A Constitutional Analysis. 57 CEO. WASH. L REV.
596. 608 (1989). The dllTlcully In finding principled distinctions bclwccn so-called "Independent" agencies and others
Is well developed in Strauss. The Place oj Agencies In Couemmenv Separation of Poiuers and the Fourth Branch. 84
COLUM. 1-. REV. 573. 581-86 (1984).
""U.S. CONST., art. 11. § 2, par. 2.
»<XBucldey V. Valeo. 424 U.S. 1 (1976).
">S272 U.S. 52 (1926).
204
39
Congressional Access to Agency Information
the United States, Congress may reserve for Itself no other removal role, even If the
administrator Is one, such as the Comptroller General, who Is widely regarded as an "arm of
the legislative branch. "«» Third, because the President Is charged to "take Care that the
Laws be faithfully executed,"^"' Congress must permit the President to remove, directly or
through a subordinate he fully controls, any administrator who Is not faithfully executing the
laws.*"* Although the full scope of this power has not been elaborated. It presumably
Includes the power to discharge an official who has broken the law, who refuses to Implement
the law, or who Is performing so jjoorly as to undermine Congress's purposes In delegating
power In the first place.
Fourth, however, even If an administrator is performing power of a sort historically
performed almost entirely by oflicers universally regarded as executive. Congress need not
render the administrator susceptible to "at will" discharge by the Presldent.2<» It may be that
the President must have plenary removal power to supervise fully the exercise of
administrative functions by any official -- such as the Secretary of State - who assists the
President in discharging an Inherent article II function. If an administrator, however. Is
Implementing delegated authority that Is not within the scope of the President's Inherent
article II functions, then any discretion the President has to discharge the administrator
depends upon congressional permission — except for the constitutionally guaranteed
authority to discharge an officer for falling faithfully to execute the laws.^'o
The foregoing propositions, all squarely affirmed by recent Supreme Court decisions,
assure the President a constitutionally prescribed minimum level of authority with respect to
every agency. That an agency has multiple administrators, with lengthy, staggered terms, or
that Congress has limited the number of agency administrators who may be members of a
particular party, would have no Impact on the President's appointment power or on his
authority to take care that the laws be faithfully executed. Nor would Congress have more
authority to supervise the administrators within such an agency. If displeased with an
administrator. It would have no power other than Impeachment to remove the official. In
these respects, all agencies are "executive."
On the other hand, the relationship that the Constitution promises to the President falls
far short of plenary policy control. Only If an administrator is Involved in discharging
functions constitutionally vested in the President Is such control a probable constitutional
mandate. Otherwise, the scope of such supervisory power and the scope of authority the
President has to remove an executive official are judgments within the discretion of Congress.
It follows from this analysis that there Is nothing In the constitutionally mandated
relationship between admlnistraUve agencies and either Congress or the President that
suggests that labeling an agency "executive" or "independent" yields (a) greater or lesser
authority for the President to control agency information, or (b) greater or lesser authority for
Congress to demand information.
""Bowshcr V. Synar. 478 U.S. 714. 746 (1986).
»nj.S. CONST., art. II. § 3.
*<*Cf.. Morrison v. Olson. 108 S.CL 2597. 2619 (1988) (This Is not a case In which the power to remove an
executive ofncial has been completely stripped from the President, thus providing no means for the President to
ensure the 'faithful execution' of the laws.')
*°®/d. at 2619-21 (Uinlls on presidential supervision of Independent counsels do not Impermissibly Impede
President In discharge of his constitutloriEtlly vested powers).
""See generally Shane, supra note 20 1 .
205
40
Peter Shane
B. Agency Structure and the Policy ImpUcations of Information Sharing
The line between independent and executive agencies also seems unhelpful in
distinguishing between sltuaUons when policy ai^uments for information disclosure will or
will not be persuaslve.^i' In part, this Is because the agencies are not neatly distinguished by
subject matter. Although most foreign policy matters are handled by executive agencies,
some "Independents." such as the Nuclear Regulatory Commission, have a potential Impact
on foreign policy and access to classified information that Is of no less concern to the
President than the agenda of the State Department. SenslUve financial Information exists
both in the "Independent" Securities and Exchange Commission and In the "executive"
Department of the Treasury. Health and safety, antitrust, energy, and transportation are
additional crlUcal policymaking areas In which both executive and mdependent agencies are
Involved.
Just as important, the arguments for and against the sharing of information do not vary
depending on the structure of the agency that holds the Information. Congressional demands
for InformaUon. as noted above, coincide with legislative dellberaUons. ordinary oversight,
confirmation Investigations, and probes Into alleged wrongdoing. The fact that the context In
which a particular one of these activities Is occurring involves an "independent" agency or an
"execuUve" agency Is irrelevant to whether Congress will find particular Information either
relevant or helpful to its tasks.
Similarly, the Interests In nondisclosure catalogued above -- protecting defense and
foreign policy secrets, confidential financial Information, the Integrity of administrative policy
deliberations, personal privacy, and law enforcement -- do not vary depending on whether
those Interests arise In an "Independent" or "executive" agency context. State secrets are
sensitive, wherever held. Financial information is no more or less sensitive because held by
the Internal Revenue Service or the Federal Reserve Board. The mtegrtty of Federal Trade
Commission Investigations and dellberaUons Is of no less concern than Investigations and
deliberations by the Environmental Protection Agency or the Justice Department. The
personal privacy Interests of ICC employees are presumably no different from those of
Defense Department staff.
In sum, to draw a line In Information handling between agencies conventionally labeled
"executive" and others convenUonally labeled "independent" may have political appeal. There
would be no constitutional barrier to the branches negotiating an informal agreement that
does treat these categories dtCTerently. It would be a mistake, however, simply to assume
either that constitutional doctrine or policy analysis dictates different treatment. They do not.
'Strauss, supra note 201, at 654-660.
206
41
Congressional Access to Agency Information
V. CONCLUSION
The foregoing study supports the following conclusions with respect to Improving the
resolution of disputes between Congress and the executive over congressional access to
Information:
1. Congress should consider enacting a declaratory Judgment procedure to accommodate
the rare case In which adjudication appears unavoidable In order to solve an Impasse
with the executive branch over access to information. 2. Congress and the President
should consider negotiating an agreement, implemented through congressional rules
and an executive order, regarding negotiations over the sharing of sensitive
information.
A. Such an agreement should specify at least (a) those interests in the control
of information that each branch could invoke in negotiations, (b) a
commitment to invoke those interests In highly specific terms should disputes
arise, and (c) a commitment to explore in negotiation how the interests of each
branch would be advanced or compromised in the particular dispute by the
use of various compromise strategies attempted in the past.
B. Such an agreement should involve the creation of some mechanism for
systematic recordkeeping concerning the informal resolution of executive
privilege disputes to enhance the branches' recognition of the various forms in
which information may be shared that may accommodate the branches'
respective Interests in the disclosure or protection of information, and to deter
treating the steikes In particular information disputes as if they Included an
overall adjustment in the relationship of the two branches.
C. Negotiations regarding an Informal agreement should focus on the
possibility of trading greater executive willingness to accommodate Congress's
time pressure and Its legitimate Interests in foreign and national security
affairs for an enhanced congressional willingness to respect the executive's
concerns for civil law enforcement and the unnecessary scrutiny of deliberative
documents representing advice to an administrator from that administrator's
personal advisers or from his or her immediate subordinates.
3. Congress should fully orient its members to the roles of the OITlce of Senate Legal Counsel
and the General Counsel to the Clerk of the House as repositories of Information and
sources of counsel to individual committees In negotiating disputes over Information.
4. In resolving disputes over Information, all three branches of the federal government should
avoid presuming different treatment for contested Information depending on whether
the information is held by agencies conventionally labeled "executive" or
"independent."
207
42
Peter Shane
APPENDIX
Government Officials Interviewed for Study
This report benefitted greatly from the willingness of a number of past and present
employees of Congress or the executive branch to share their views and experiences with the
autiior. Because the following people did not Insist on confidentiality. I am able to thank
them pubhcly for their generosity.
Robert P. Bedell. Esq.
Iformer Administrator, Office of Federal Procurement Policy)
Dllworth, Paxson. Kallsh & Kauflman
1CX)1 Pennsylvania Avenue. N.W.
Washington. D.C. 20004
Hon. Terty Calvanl
Federal Trade Commission
Washington. D.C.
John Cooney. Esq.
Iformer assistant general counsel.
Office of Management and Budget]
Dllworth, Paxson. Kallsh & Kaufiman
1001 Pennsylvania Avenue, N.W.
Washington, D.C 20004
Michael Davidson. Esq.
Senate Legal Counsel
U.S. Senate
642 Hart Senate Office Building
Washington, D.C. 20510-7520
Robert Gllllat, Esq.
U.S. Department of Defense
Office of the General Counsel
Pentagon - Room 3E-999
Washington. D.C.
Patrick M. McLaln. Esq.
[formerly Counsel. Subcommittee on Oversight and Investigations. House Committee on
Energy amd Commerce]
Rowan and Blewltt
1000 Vermont Avenue. N.W.
Suite 1000
Washington. D.C. 20005
John Mlntz. Esq.
Iformerly General Counsel.
Federal Bureau of Investigation]
Gibson. Durm & Crutcher
1050 ConnecUcut Avenue. N.W.
Suite 900
Washington. D.C. 20036
208
43
Congressional Access to Agency Information
Theodore B. Olson, Esq.
Iformerly assistant attorney general In charge of the Office of Legal Counsel.
U.S. Department of Justice]
Gibson, Dunn & Crutcher
1050 Connecticut Avenue. N.W.
Suite 900
Washington. D.C. 20036
Morton Rosenbei^g. Esq.
Congressional Research Service
Amerlcem Law Division
Library of Congress
227 Madison Building
Washington. D.C. 20540
Brltt Snider. Esq.
General Counsel
Select Committee on Intelligence
2 1 1 Hart Senate Office Building
Washington, D.C. 20510-6475
Charles Tlefer. Esq.
Deputy General Counsel to the Clerk
U.S. House of Representatives *;.
U.S. Capitol - H- 105 '
Washington, D.C. 20515-6601
209
Testimony of John Brademas
President Emeritus, New York University
Member of Congress (D-Ind.), 1959-81
Before the
Joint Committee on the Organization of Congress
Washington, D.C.
Tuesday, June 22, 1993
Chairmen Hamilton and Boren and members of the Joint
Committee on the Organization of Congress, I am honored to
have been invited to contribute to your deliberations on
the operation of Congress and to today's discussion of
Legislative-Executive branch relations.^
I speak to you from the perspective of one who was
educated as a political scientist; served in the United
States House of Representatives for twenty- two years, the
last four as Majority Whip; served eleven years as a
university president; and has served, and continues to
seirve, on a number of boards and commissions that deal with
various aspects of Federal policy.
In this last connection, I served on the National
Commission on the Pviblic service, chaired by my
distinguished colleague on this panel, Paul Volcker; serve
now on the National Advisory Council on the Public Service;
' I discuss at greater length some of the issues in this
statement in my books Washington. D.C. to Washington Square
(Weidenfeld & Nicolson; New York, 1986); and (with Lynne P. Brown)
The Politics of Education (University of Oklahoma Press; Norman,
1987) .
210
served on the Carnegie Endowment National comaission on
America and the New World; serve on the Consultant Panel to
the Comptroller General of the United states; chair the
Committee on Congress of the Carnegie Commission on
Science, Technology and Government; and have recently
become Chairman of the National Endowment for Democracy.
While in Congress, I served on the Committee on
Education and LeOior, House Administration Committee and the
Joint Committee on the Library [of Congress] and the House
Democratic Steering and Policy Committee.
Of particular relevance to this Committee perhaps is
that during my last four years in the House, from 1977 to
198X, I was Majority Whip, third-ranXing member of the
Leadership. In this position I was responsible for
rounding up votes for the legislative positions of Speaker
O'Neill and the Democratic Leadership and for advising the
Speaker and Majority Leader. As Whip, I attended, with
other House and Senate Democratic leaders, the twice-
monthly breakfasts at the white House with President Carter
and Vice President Mondale.
As the theme of this panel is Legislative-Executive
relations, I note that my service in Congress spanned the
tenure of six presidents: three Republicans — Eisenhower,
Nixon and Ford — and three Democrats — Kennedy, Johnson and
Carter.
211
Basic to an appreciation of Legislative-Executive
relations, indeed, of the American form of government, are
certain fundamental factors. First, we have a separation-
of-powers Constitution. Second, our political parties are
decentralized. Third, over the last twenty years, there
have been significant changes in the operation of Congress
that, in an already fragmented system, have further
dispersed power.
Now people hear the phrase, "separation of powers,"
but too few understand its meaning. Some think Congress
exists to do whatever a President wants. This is not what
the Fovmding Fathers had in mind.
It is imperative here to remember that Presidents,
Senators and Representatives are elected by different
constituencies, for differing terms amd with different
Constitutional responsibilities.
In our system, as distinguished from a parliiunentary
one, the chief executive is not chosen from the legislative
majority and often does not even belong to the majority
party in Congress, witness the years of Presidents Reagan
and Bush.
It may be instructive in this respect if I tell you
that in my own fourteen races for Congress, I ran five
times in Presidential election years but that only once did
the people of my Northern Indiana district vote for the
212
nominee of my party for President.
The American way of governing was not designed for
peaceful coexistence between the Executive and Legislative
branches even when both are controlled by the same party.
Beyond the constitutional arrangement of what Richard
Neustadt has called "separated institutions sharing powers"
is another factor that greatly affects the relationship
between the two ends of Pennsylvania Avenue. We do not
have highly disciplined political parties.
Our two traditional major parties in the United States
have made possible durable coalitions of disparate but
broadly compatible interests. The umbrella of national
party affiliation has helped build consensus within as well
as across party lines, a crucial role in making goverzunent
work in a big country like ours with many differences of
region, race, ethnic origin and economic interest.
But for various reasons, the ties of party have been
weakened over the last generation. The decline of
political patronage, with the rise of the civil service, is
one explzmation. Another is that television has now become
the chief instrument of political communication.
Television in turn is largely responsible for the
escalating cost of running for office and for the enormous
importance in American politics today of money to finance
campaigns .
213
Wben I first ran for Congress in X954, I spent, as I
recall, between $12,000 and $15,000; the last time, in
1980, my memory tells me, around $675,000.
The imperative of raising czunpaign funds, married to
the increasingly significant impact of decisions by the
Federal government on society and the economy, has opened
the door to very great influence on the political process
of so-called special interest groups and czunpaign
contributions from political action committees,
developments that clearly have made far more difficult the
task, essential to the process of policy-making in a
democracy, of accommodation and compromise.
To these decentralizing, fragmenting forces must be
added changes over the last two decades in the operations
of Congress itself, especially in the House of
Representatives. I was part of those changes, aimed
chiefly at curbing the power of autocratic full committee
chairmen, at opening up the system to effective
participation by more members and at making the House more
democratic and accountable.
These reforms, however, have not necessarily made the
House of Representatives easier to lead or majorities
easier to forge, so dealing with the House — I do not even
speak of the Senate! — is often just as difficult for a
Speaker as it is for a President.
/O
214
Here let me note that Congress has been affected not
only by the kinds of reforms I have cited but also by steps
Congress has taken to strengthen its capacity to carry out
its functions as policy-maker and overseer of the Executive
in carrying out the laws.
Most significant in this regard is the establishment
of a Congressional process for producing a Federal budget.
Next year marks the 2 0tb anniversary of the passage of
legislation that created Budget Committees in the House and
Senate and a Congressional Budget Office.
The Office of Technology Assessment is another exeunple
of the continuing effort by Congress to enhance its access
to intelligence and advice. Indeed, the raison d'etre of
the Carnegie Commission on Science, Technology and
Government is to study ways in which all branches of the
Federal government, as well as the states, can more
effectively make decisions on issues with scientific or
technological implications.
The Carnegie Commissions 's Committee on Science,
Technology and Congress has produced two reports, one on
S&T advice from the Congressional support agencies — CBO,
OTA, the General Accounting Office, and the Congressional
Research Service of the Library of Congress— and a second
215
on sources of such expert advice outside Congress.^
My committee is now working on the third report, in my
view, most difficult, on the organization and procedures of
Congress for dealing with 8&T issues.
At this point, I want simply to list certain reforms
that I believe would significantly improve the capacity of
Congress to play its deliberative as well as representative
role in our political system.
First, a four-year term for Members of the House of
Representatives would enaible them, without such unrelenting
pressure to campaign and raise money, to focus more on
long-range policy. To preserve the advantage of a biennial
referendiun, stagger the terms, with half the seats up every
two years.
Next, reform the campaign finance laws. As a co-
author of the 197 4 statute that provides for financing of
presidential ceunpaigns, I have long favored public
financing of House and Senate races, and not solely as a
^ Science. Technology, and Congress: Expert Advice and the
Decision-Makino Process. 1991.
Science. Technology, and Congress; Analysis and Advice
from the Congressional Support Agencies, 1991.
See also Working with Congress: A Practical Guide for
Scientists and Engineers, by William G. Wells, Jr. (Carnegie
Commission on Science, Technology and Government with the American
Association for the Advancement of Science; Washington, D.C.,
1992) .
r
4-
216
way to impose spending limits but, still more important, to
reduce the excessive influence of PAC aind other special
interest money on public policymzUcing.
I also favor encouraging contributions to political
parties as a way of strengthening their place in developing
policy proposals, fashioning consensus for them and
encouraging greater citizen participation in politics.
These are a few examples of changes I would make that
would not only help Congress do a better job but would also
increase the prospects of cooperation between Congress and
the Executive, a question to which I now turn.
The subject of this panel is so broad that I can offer
but a few generalizations and some concrete illustrations.
The safest generalization, in response to questions eUsout
institutional forces and individuals in the American
political system, is, "It all depends."
For the state of Legislative-Executive relations
varies with the time period, the policy area and above all,
with the configuration of political forces. Is the
President a Democrat or a Republican? Which party controls
the Senate and House and by how many votes?
I remind you that when Presidents Johnson and Carter
took office, there were more than 290 Democrats in the
House and 60 in the Senate; today there are only 258 in the
House and 5 6 in the Senate.
8
217
Nonetheless, as Congressional Quarterly (May 29, 1993)
has noted, "...[Aln analysis of this year's votes shows
party \inity is at an all-time high for both Democrats and
Republicans, continuing a 20-year trend. ... [T]hrough May
28, the average Member supported his or her party on
roughly 90 percent of the partisan votes (...) when a
majority of Democrats voted against a majority of
Republicans."
That Democrats today have a majority in the Senate
does not, obviously, mean automatic approval of a
Democratic President's budget any more than a Repiiblican
President in 1981 found swift passage of his budget by a
Republican-controlled Senate.
Another point: The Lyndon Johnson of 196S was not the
Lyndon Johnson of 19 68. The Richard Nixon of 1969 was not
the Richard Nixon of 1974. The George Bush of 1991 was not
the George Bush of 1992. In politics, although the same
people may be in office, times change. Indeed, if I may
say so, the Bill Clinton of two weeks ago was not the Bill
Clinton of last week, much I'm sure, to his satisfaction!
Now I sat on the House Committee on Education and
Labor during the Great Society days of Lyndon Johnson, and
whether or not you agreed with the legislation that he and
our committee produced, no one can say that the Executive
and Legislative branches did not work together effectively.
218
Yet it was Democrats in Congress who ultimately turned
against Johnson on the Vietnam War and ultimately drove him
£rom office.
During the Nixon years, I will flatly assert, the
Executive branch had little to do with the making of
Federal policy in the field of education. We in Congress,
Republicans often joining Democrats, initiated euid shaped
the major education bills. I make this point because we
have become so accustomed to thinking of Presidential
lawmaking as the norm.
As I was a member of the Congressional Leadership
during Jimmy Carter's presidency, perhaps I should offer a
few observations on that relationship.
President Carter was new to Washington and had won
election by, in effect, running against it. He did not
seem to have the zest for and relish in political combat
that some of us, like Tip O'Neill, Hubert Hiimphrey, and
John Brademas, had. President Carter wore his office like
a burden.
That we had all been elected by larger margins than he
was not lost on us.
President Carter appeared to feel that once he had
made judgments on the substance of policy, shaped his
legislative proposals and shipped them to Capitol Hill, his
job was done. He worked prodigiously to develop his
10
219
proposals but not as bard in selling them. He disdained
the horse-trading and bargaining that characterized much of
the legislative process.
He also tended to overload the legislative pipeline.
He found it difficult to understand the way a Member
of Congress, especially of the House of Representatives, up
for reelection every two years, must see the world.
These at least were some of the ingredients of Jimmy
Carter's style in his first year. But Mr. Carter's
relations with Congress improved considerably, and during
his presidency, he built an impressive legislative record.
The Department of Energy, the Panzuna Canal Treaties, the
Department of Education, Ethics in Government Act,
Superfund and his own efforts on behalf of human rights
worldwide and in reaching the Camp David Accords — all that
is not a bad record for a President and Congress who
supposedly couldn't get along!
Here let me draw attention to a problem of which every
President complains. The arcfument is that Congress,
through legislation, committee reports and in other ways,
ties, in inappropriate fashion, the hands of the Executive
in implementing laws. To this general charge, I must again
respond, "It all depends." Sometimes it's fair, sometimes
not.
During the years of Richard Mixon, many Democrats like
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me, a proud member of the White House "Enemies List," did
not trust the Executive faithfully to carry out the laws,
and, of course, we were right.
Here I shall tell you of one encounter with the
Executive with which, as some of my former colleagues on
this committee are well aware, I was directly involved.
Nineteen years ago this summer, following an abortive
coup against then-President Makarios of Cyprus, a coup
attempted by a Greek military dictatorship which I, the
first native-born American of Greek origin elected to
Congress, strongly opposed, and which subsequently fell,
Turkish troops, equipped with weapons supplied by the
United States, invaded and occupied this small island
republic.
Because American law — the Foreign Assistance Act and
the Foreign Military Assistance Act — mandated immediate
termination of further U.S. arms to any country using them
for other than defensive purposes, several of us in
Congress called on then-Secretary of state Kissinger to
insist that he enforce the law and halt weapons shipments
to Turkey.
My colleagues and I reminded the Secretary that the
reason Mr. Nixon was that very week on his way to San
Clemente was that he failed to respect the laws and the
Constitution of the United States.
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221
As you will recall, in light of the willful refusal of
the Executive branch to enforce the laws of the land.
Congress acted to do so, through imposing an arms embargo
on Turkey.
Nearly two decades later, Cyprus is still divided,
Turkish troops still occupy the country and, in my view,
American Presidents, of both parties, have failed utterly
to provide leadership to resolve the issue.
But to debate the pros smd cons of the Cyprus issue is
not my intention. I eun making a larger point, and I do so
as bluntly as I can and with particular reference to the
question of Executive-Legislative relations in the field of
foreign policy, a matter on which several members of the
Joint Committee on the Organization of Congress have been
deeply involved.
I cite but two examples of what I'm talking about.
In view of the secret actions of the Reagan Administration
in trading arms to Iran for American hostages and using the
proceeds, in violation of law, to buy arms for the
Nicaraguan resistance, and in view of the actions of
President Bush, contrary to his representations, of
building up, before the Persian Gulf War, the war machine
of Saddam Hussein, I believe the question of relations
between Congress and the Executive in the field of foreign
affairs to be a far more profound challenge to the Americam
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Constitutional system than the American people are even now
aware .
For foreign policy is the life and death arena for a
President and Congress, and without a sense of trust
between the two branches, we imperil the vital interests,
indeed, the security, of our nation.
The co-chairman of this Committee, my friend and
distinguished former colleague from Indiana, now chairman
of the House Committee on Foreign Affairs, once put my
point this way:
The object is to make the Constitution of the
United States work....! do not see how that can
be done unless those of us who are charged with
that responsibility speak to one another the
truth. . . .
The Congress cannot play its Constitutional role
if it cannot trust the testimony of
representatives of the President as truthful and
fully informed.
The point chairman Hamilton makes is crucial for the
Constitution assigns specific and major powers to Congress
in foreign policy, including the power to appropriate money
and to declare war. So it is imperative that between the
President «md Congress there be an attitude of, if not
always harmony, one of respect and above all, to reiterate,
of trust.
A President who wants to be successful in the conduct
of foreign affairs must be able to work honorably and
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223
straightforwardly with Congress. If he deceives or lies,
ultimately, he and the nation will fail.
Based on my experience of over twenty years in
Congress, and having served with — not under! — six
Presidents and having closely observed those in office
since I left Washington, D.C., I must tell you that I have
become increasingly disturbed over the last decade by what
I believe is a widening gap between the principles at the
core of the American republic and the activities of
American presidents in foreign affairs. X must also be
critical of the failure of Congress, which for most of the
years since I was first elected in 1958 has been controlled
in both bodies by my party, to carry out the
responsibilities in foreign policy prescribed for it by the
Constitution.
I hope, with the election of Bill Clinton and Al Gore,
Democratic leaders who can work with a Democratic Congress,
there will be a renewal of trust between the two branches
and, accordingly, a more effective American foreign policy.
I add that the opportunity a united government presents to
overcome the institutional distrust that has characterized
the foreign policy process of recent years must not be
lost.
As I conclude, I return to the general question of how
to improve cooperation between the two branches and
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overcome friction. It nust be obvious from what I have
said that I do oot favor eliminating friction and
disagreement, not only an impossible goal but an unwise
one.
For sometimes obstruction by Congress of Executive
branch actions is in the national interest. It's always a
matter of judgment. For example, I wish that in 1981
Congress had been far more obstructionist and had
effectively opposed Ronald Reagan's huge tax cut and huge
increase in military spending. Had Congress then blocked
those actions, America would not now be suffering a $4
trillion plus national debt and enormous annual deficits
in the Federal budget.
Certainly there are institutional, structural changes
that can increase the likelihood that both the President
emd Congress can more effectively deal with the nation's
problems. But in the final analysis, the answer to that
question will depend on the quality of the leaders the
Americzm people choose and so on the judgment, good or bad,
of the American people.
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225
STATEMENT OF THE HONORABLE JOHN CONYERS, JR.
Joint Committee on the Organization of Congress
June 24, 1993
Chairmen Boren, Chairman Hamilton, Congressman Dreier, and
Senator Domenici, and members of the Joint Committee. I
appreciate the invitation to address the committee on the role of
oversight by Congress. I would also like to commend the
committee for its hard work on the difficult task of examining
the way Congress does business and recommending appropriate
changes .
You asked me to address several issues related to the
oversight role of the Congress. I cannot stress enough how
critical a mission this is for Congress. Polls routinely
indicate that the public believes waste, fraud, and abuse is one
of the most important problems in government. They are not
without foundation. A report by the Committee's Majority staff
last December identified significant eind costly management
problems in virtually every major agency and department. What we
found were billion-dollar computer systems that don't work,
financial management systems that were inaccurate and unreliable,
and general mismanagement on a massive scale. The single most
costly problem we found, common to almost every agency, was bad
information systems-- the most basic tool of sound management.
Before I address the specific issues raised in your
invitation letter, I think it is important to discuss the role of
the Committee on Government Operations. The Committee is unique
on Capitol Hill in that its primary and virtually exclusive
mission is its oversight responsibilities and its ability to
enact government -wide corrective legislation. Almost without
limitation, it is authorized to conduct oversight and
investigations into any aspect of the Federal government to
ensure that programs are managed efficiently and effectively, in
accordance with the dictates of Congress, and in full compliance
with the law.
The Committee is divided into six subcommittees, with each
roughly responsible for three departments and a number of smaller
agencies. For example, the subcommittee which I chair is
responsible for the Pentagon, NASA, the State Department, and the
intelligence community. The subcommittee chaired by Mr. Synar
has the Departments of Energy, the Interior, EPA, and the Forest
Service. This way, we can ensure that every program receives at
least some level of scrutiny by the Committee.
Obviously, in some cases, that scrutiny is far more in depth
than in others. This is because with the staff limitations
imposed on the Committee, we are able to assign an average of
226
less than one-and-a-half staff members for each major department
and agency. And every time there is another successful attenpt
to cut committee funding, that number goes down. So contrary to
the rhetoric that you often hear, the budget freeze we have been
under for several years is counterproductive and short-sighted to
the goal of reducing government waste.
Most other Committees do have oversight responsibilities for
programs within their legislative jurisdiction. This results in
the possibility of conflicting loyalties. Because the Government
Operations Committee oversees programs that it does not
authorize, we are therefore seen as being more objective than
other committees, and more able to see the bigger picture. After
all, it is unrealistic to expect a subcommittee chairman to
conduct aggressive, adversarial oversight of an agency head with
whom he is also regularly negotiating.
Many members have the mistaken impression that the
Government Operations Committee has no legislative
responsibilities. In fact, the Committee has an aggressive
legislative function that' con^liments its oversight role.
Central to that is what we call our "good government"
jurisdiction to address waste, fraud, and abuse-- legislation
that dictates efficiency and sound management across the
government. It includes government -wide procurement and
information resources management, and extends to budget process,
which I will discuss shortly.
Let me give you just a few exait^iles of our "good government"
legislation. This Session, the House has already passed H.R.
826, the Committee's bill to require performance measurement and
performance -based budgeting from agencies. We have also set in
place in the budget reconciliation measure, provisions for
greater controls in skyrocketing entitlement outlays. In recent
years, the Committee has passed the Inspectors General Act, the
Chief Financial Officers Act, and the Competition in Contracting
Act. These laws demonstrate that after identifying waste, fraud,
and abuse across the agencies through aggressive oversight, we
then try to fix these problems through legislation. My point is
that oversight and this type of legislation must go hand- in-hand.
There are two other areas of legislative jurisdiction that
are closely related to the Committee's oversight mission.
Because of the Committee's broad view of government agencies amd
its more objective position, it also has jurisdiction for
government reorganizations. For exan^jle, we are currently
drafting legislation to elevate the EPA to Cabinet status, and in
the process attempting to mandate better management practices at
EPA. Besides the elevation, the legislation is aimed at
cleaning up the enormous mismanagement at the agency with the
tools gleaned from our oversight work throughout the government.
227
In addition, the Committee has legislative jurisdiction for
budget process. We have carved out intensive functions in this
area, including managing House passage of the •• enhanced -
rescission" legislation and budget enforcement provisions of
budget reconciliation. We also passed legislation on Performance
Budgeting requiring agencies to justify their budgets with
measurable outcomes which they can be judged against. We are
looking at other long term budget process issues such as capital
budgeting, entitlement controls, and the treatment of certain
budget components under the Budget Enforcement Act. These are
important functions, which are well handled outside the annual
partisan budget resolution and reconciliation battles.
I am also a supporter of biennial budgeting, coupling
legislative branch changes to similar cycles in the executive
branch. This is best done through the Government Operations
Committee.
Some people have advocated collapsing other Committees into
the Government Operations Committee. While some may consider it
uncharacteristic for a Committee Chairman to turn down additional
jurisdictional responsibilities, I am concerned that such
additional responsibilities, may dilute the focus of our primary
mission to identify and fix the enormous problem of government
waste. The exclusive nature of the Committee ensures better, and
more pure, oversight. The functions of other committees would
distract our members from the mission at a time when the mission
requires more focus, not less. I fear sound oversight will be
lost if it is mingled with those other responsibilities.
Let me now quickly address some of the issues raised in your
invitation letter.
1. What are the objectives of oversight?
While I have discussed this briefly, I want to reiterate
that not only must oversight identify the waste, fraud, abuse,
and mismanagement, more importantly it must restore faith of the
American public in its government institutions. I also believe
that oversight can not simply identify problems - - it must also
help to implement solutions.
2. What changes can Congress make that can lead to better
oversight?
The single biggest lapse in Congress' oversight role is the
disconnect between the oversight Committee's and the authorizing
and appropriating committees. Our recommendations on management
problems and fixes are often overlooked. While the House Rules
include a requirement that findings from the Government
Operations Committee be considered in legislative reports, this
228
is infrequently the case. I do not have cm answer to this
problem, but it is one that the Joint Committee should consider.
3. What are the oversight responsibilities of Executive Bramch
executives?
Agency officials have a responsibility to make a good faith
effort to correct problems identified by Congressional oversight
before they become front-page scandals. Unfortunately, for a
variety of reasons, this is rarely the case. I am not sure how
the Joint Committee can resolve this issue.
4. Would alternatives to the traditional approach to oversight
lead to a dramatic difference in the quality of governance?
I believe that this is certainly the case. The major change
must be in translating the findings of oversight into corrective
actions that will prevent problems from reoccurring in the
federal government. The Executive Branch must have a "management
revolution" in order to overcome its many management problems:
again, it's using 1970s technology and management techniques to
solve 1990s problems. Many of those changes can only come with
better leadership from the Executive Branch.
I thank the Committee for its interest in oversight matters, and
would be pleased to answer any questions its members might have.
229
Senator John Glenn
Joint Committee on the Organization of Congress
June 24, 1993
Good morning. I want to thank the co-chalrmea of the
Joint Committee on the Organization of Congress, Senator Boren
and Representative Hamilton, as well as the other members of
this committee, for the opportunity to testify here this
morning.
The work of the Joint Committee on the Organization of
Congress is absolutely vital to restoring the credibility of
the Congress. Americans signaled loud and clear in the last
election that they are tired of the gridlock that has stalled
effective legislation, and that the time for politics and
business as usual has ended. This means that the nation's
interest must come before the special Interests. We have an
obligation, one that this committee is admirably fulfilling, to
ensure that a more effective and accountable Congress can
strengthen instead of undermine our representative democracy.
As we all know, the internal workings of the legislature,
while arcane, go to the heart of policy making and also set the
tone for how Americans perceive their elected officials. Thus,
when the public sees that Congress fails to pass appropriations
bills before the fiscal year begins, or when committees ignore
spending targets in order to push yet another camel's nose
under the tent, when gridlock stymies all change, voters
230
rightfully conclude that Congress no longer has the country's
interest in mind.
Mr. Chairman, I will stress two themes in my testimony
about the committee system and the role it plays in effective
governance. I will first discuss the critical need to reform
our committee structure in order to revitalize the legislative
process and end gridlock. Furthermore, I will talk about the
importance of strengthening the management and oversight role
for which committees are responsible. And I would also offer a
note of caution: This committee can spend its time studying
and recommending changes that alter things which are only
important to Members of Congress and other Washington insiders,
or it can spend its time ensuring that its recommendations will
lead to results that truly serve the American public. Yet the
public will be judging the changes we make here on the only
sccrecard that matters: how it affects the effectiveness of
their government, their quality of life and that of the nation
as a whole.
As part of the effort to make more effective our Committee
system, the joint committee must ask the hard questions: How
can we create and enforce jurisdictional lines that make sense
out of government? What should be the function of committees,
and what can be done to make them more effective? How can we
improve the oversight role of committees and diminish the
chances that another HUD scandal, another banking scandal or
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student loan scandal or FEMA disaster, occurs? Can we set
goals and measure the performance of our committees, as we now
are seeking to do In the executive branch? I submit, Mr.
Chairman, that until we answer these questions and others like
them, efforts to restructure the committee system will be an
exercise In boxology. In simply re-arranglng deck chairs on the
Titanic.
We all know that this Is not the first time a
distinguished committee has been formed in the hopes of
returning Congress to its real work. There have been many
recommendations, terrific recommendations, which have come out
of the work of past joint or special congressional reform
committees. The problem has not been the recommendations,
but, rather, the unwillingness of members to give up their
power -- even in the public's interest. The key to fixing
Congress has never been a question of finding the way but,
rather, the will.
Rarely in our history have calls for governmental reform
come together in such a positive way -- we now have what may be
just the right mix of political consensus and public pressure
to successfully overhaul the government. And I am not just
talking about the Congress. As my colleagues know, the
President has Intitiated a six-month National Performance
Review under the direction of Vice President Gore. I commend
the President for making a bold move toward reforming
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government, an endeavor which complements the efforts of the
Senate Governmental Affairs Committee, which I chair — such as
the creation and support of Inspectors General and Chief
Financial Officers, to fight waste and improve accountability
for financial and general management.
Yet, the public demands that we do more. While Congress
and the public support the efforts of the President in his
six-month governmentwide performance review, many of our
problems are more complicated and substantial. They can only
be solved through a comprehensive approach using the talents
and experience of both the executive and legislative branches.
That is why I, and others, have introduced legislation to
establish a Commission that will help us to permanently reform
and restructure the Federal government. We would hope that the
recommendations of the National Performance Review will be
incorporated into the work of the Commission.
All of us are well aware that our nation and our world are
changing rapidly. And we are equally aware--or should be
aware- -that a government still largely organized for the Great
Depression cannot possibly help America meet the challenges of
today, or of the future. Farming has been completely
transformed in the past half-century, yet the Agriculture
Department still retains an office, sometimes several offices,
in nearly every county in the nation. Job training and
development is of paramount importance to America's retaining a
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competitive edge in the global economy, but our citizens must
wade through a bewildering array of 125 different job programs
to get help. Equally problematic is that Congress's structure
reflects that same crazy quilt of overlap that leads to
ineffective and uncoordinated program oversight.
In the end, reform will be of little consequence, for
example, if Congress adopts the recommendations of an
independent commission on restructuring executive branch
agencies, yet Congress fails to rationalize its own committee
jurisdictions. Of course, this goes not just for improving how
executive agencies and legislative committees relate to each
other, but for recommendations that might affect the budget
process, civil service reform, performance measurement and
other important issues. Thus, I would urge this committee to
pay close attention to the work of the National Performance
Review and, if time permits, to the role of any independent
commission that Congress creates for reorganizing and improving
the performance of the executive branch. At the same time, I
do not think that the Congress must wait for a reorganization
of the Executive Branch in order to make meaningful changes of
its own.
I am surely not the first Senator or Representative to
suggest that our age-old Committee structure needs a
substantial overhaul, but I am increasingly concerned about
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this problem. Historians will tell you that our Conunlttee
system, like the executive branch itself, remained relatively
modest until the centralization resulting from the Civil War
and the ensuing industrialization of the nation put pressure on
the government to expand. As we all know, it seems to have
never stopped expanding. Now, with our government and Its
concerns immeasureably more complex, we have created a
committee system so unwieldy that it threatens to sink of its
own weight. The number of committees and subcommittees, of
joint committees, select committees, special committees and
leadership committees is excess.'. ve.
In my opinion, it is not the number of committees that is
Important but the focus. In the same way that the reform of
the executive branch should focus on the functions and
performance we expect our agencies to achieve, so too must our
reform of the Committee structure reflect ours' and the
public's views on how to best consider and pass legislation.
The number, the titles, the specific lines we draw, are less
important than the results we achieve. The sheer complexity of
our structure, the jurisdictional gridlock that thwarts
compromise and encourages fiefdoms, the overlap that bewilders
even insiders and wastes resources, must all be eliminated. I
recognize that this is easier said than done, but our
credibility now rests on our willingness to change.
I would like to offer a few specifics in this area:
235
Committee Structure and Assignments. Besides reducing
redundancy and streamlining jurisdictions, trimming the
number of committees and subcommittees also will ease the
burden on members who must serve on an excessive number of
committees. Many of my colleagues share the frustration
I often feel of being pulled in too many directions. Few
of us can be truly informed and fully effective in all of
these areas, and for all of the committees, to which we
currently are committed. Another way to deal with
overlapping committees is for us to get away from the
notion that all new Senators should expect to get a
subcommittee chairmanship -- especially if we are to
concentrate our efforts on the issues that matter most.
Thus, I would recommend that we reformulate and reduce our
Congressional committees, and that we mainly do this by
restructuring along functional lines of the government's
role in society. It is high time that we simplify for
improved efficiency and effectiveness, and we can do this
by curtailing the number of committees and subcommittees,
which in turn will reduce overlap and enhance our focus.
I think it makes sense to have five major committees, with
a limited number of subcommittees, that can more
adequately focus on the functions of government and
society. Having five committees structured by function
will also allow the Senate leadership more control in
formulating and moving legislation, and would permit the
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Majority Leader a sort of legislative cabinet to help
oversee a functional approach to government. I would
propose that we create committees to focus on human
resources, natural resources, national defense, economic
affairs and international relations, with perhaps a sixth
committee on rules and administration to handle such
matters as the federal civil service which don't conform
to the other categories. And although the Executive
Branch may not immediately align itself in a parallel
manner, I do think that over time, the agencies of
government will recognize that a more streamlined
organization will improve services to the public and
reduce wasteful spending.
Finally, in this area, I want to mention the ethics
committee. After considerable reflection about the
approach used by the Senate to discipline its members, I
would recommend that the Senate create an ethics panel
composed of former Senators, perhaps members or retired
members of the federal judiciary, and members of the
general public. In my view, the Ethics Committee as it is
currently constituted is unable to obtain the confidence
of the Senate or the American public that its proceedings
are fair or unpoliticized. I think I speak for many
members when I say that we were not elected to the Senate
to serve as the judges and juries of other senators.
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o Committee Term and Chair Limits. As the chairman of one
full committee, the Senate Governmental Affairs Committee,
and one subcommittee, the Subcommitee on Readiness,
Sustainability and Support of the Senate Armed Services
Committee, I have thought long and hard about the
advisability of rotating memberships of committees. I
currently serve on the Intelligence Committee, where there
is a term for members, and I believe there is merit to
adopting terms for certain committees, among them
Intelligence, and perhaps the Budget and Appropriations
Committees. I think that seniority, for members and for
chairmen, is important to assure the institutional memory
for our committee responsibilities, but expertise and
knowledge should also be factors in the selection of
committee members and chairmen.
o Budget and ^propriations Committee Consolidations. As I
mentioned, earlier, there are many possibilities for
committee consolidation and streamlining that the joint
committee might consider recommending, but there is one
other that I would like to stress. I think that the
Congress truly does itself and the country a dis-service
through its complex, multi- layered approach to spending.
The overlay of budget committees, authorizing committees
and appropriations committees, combined with sequestration
and the budget summits, has broken down. It distorts the
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process, dilutes fiscal accountability, disconnects
oversight from outlays, and renders unintelligible
Congress' most basic responsibility: the wise spending of
taxdollars. Our attempts to fix this problem in the past
have only added to their complexity. It is time we work in
the other direction, and that we somehow integrate the
budget and appropriations function into the authorizing
role. We need to merge the appropriations and authorizing
roles, and create some combination that stops overlap, so
that once and for all we can eliminate what I think is
just a "legislative WPA." Make no mistake — this will
alter the power structure here on Capitol Hill, but
retaining the status quo, the myriad of fiefdoms and
duplication, serves no one but ourselves.
While I am at it, let me mention the importance of
biennial budgeting to governmental reform. I don't need
to remind my colleagues how complicated the budgeting
process has become, and how much more time we spend on it
than we did in the past — time that could be better spend
on oversight and policy deliberation. Biennial budgeting
would help free up the Congress to spend more time in the
off-years actually overseeing programs and helping to
ensure the effective management of agencies. The
Executive Branch also would clearly benefit from a more
stable budget environment in which program managers could
more effectively plan and utilize their resources.
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I should also mention that judging ourselves by
intended results instead of some static view of today's
structure or interests suggests other organizational
changes, as well. For example, my oversight of executive
branch information resources management tells me that in
this dawning electronic information age. Congress, too,
should be reassessing how we handle our own information
and, even more importantly, how we communicate with the
public.
My bill to reauthorize the Paperwork Reduction Act,
for instance, deals not only with reducing redtape burdens
on the public, but also with promoting the effective use
of information technology for managing information.
Congress must focus on improving its own information
infrastructure. At the same time, it needs to more
effectively access executive branch information sources to
assist in its authorization, appropriations and oversight
functions. This requires review of congressional
information activities, and cooperation among all entities
of the legislative branch.
While I am on the subject, I want to note that much
of the Federal government's information dissemination
activities are still rooted in the 19th century printing
laws that created the Government Printing Office. There
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is no doubt about It -- the wave of the future involves
more the electronic dissemination of information than it
does paper. In addition to the legal question of the
propriety of having a legislative office manage
information activities for the executive branch, there Is
the question of whether it makes sense to have a
centralized "printing" facility for the entire
government. We need to rethink the role of GPO and how to
integrate its function into our technological future.
Now, I would like to say a few words about the Senate's
oversight role. The complexity of jurisdictional Issues
Impacts oversight, as does our inadequacy in focusing on
government management problems and our obligations for the
confirmation process.
o Management. Mr. Chairman, while I am talking about the
duties of committees, I want to urge my colleagues to view
agency management issues as a more central part of their
responsibilities. In a recent hearing of the Governmental
Affairs Committee, Comptroller General Charles Bowsher was
asked to name a government agency which he believed to be
well managed. He hesitated for a few moments, said he
could not think of any, and then said that the Army had at
least made some management improvements. This is a
terrible state of affairs; we can no longer afford to
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Ignore how agencies are managed. Too often, our
committees spend their efforts exclusively on specific
program activities within their jurisdictions while rarely
considering the larger management considerations that can
mean the success and failure of programs. Issues of
waste, fraud and abuse, financial management Improvements,
providing reliable and timely program Information through
better Information systems, insisting on effective and
complete resolution of audit findings, ensuring adequate
capacity, oversight and resources for agencies to
accomplish their missions, strengthening contract
management, focusing on agency outcomes Instead of outputs
— all of these issues are critical to program
effectiveness and to the accountability of government in
spending taxdollars. Thus, I urge my colleagues to
consider these Issues in their oversight of agencies and
to work more closely with Chief Financial Officers and
Inspectors General to improve the management of the
Federal government.
o Academic Research. One other thing that needs reform, Mr.
Chairman, is the way that committees and the Congress as a
whole earmark money for academic research and development.
According to the Congressional Research Service,
Congress ionally earmarked funds for academic research and
development exceeded $700 million in fiscal year 1992 and
are growing rapidly. Many In the scientific and technical
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community are concerned that this trend signifies a
growing movement in the Federal government away from
traditional competitive-based peer review towards
decisions based largely on political consideration. While
I support Congress' right to determine agency spending
priorities, I believe the process by which the
Appropriations Committee earmarks these funds should be
opened up to greater transparency and sunshine. Anyone
who has looked through an Appropriations bill and report
to locate one of these earmarks knows that it is like
trying tb^ f ind a four leaf clover in a football field. I
suggest that a^^eparate section be set aside in the
Appropriations Committee reports that lists all the
earmarked projects, the recipient institution and its
geographic location, and whether the projects went through
a competitive, peer review process. In my opinion, only
in rare cases should such funds be earmarked; these funds
must be provided on a merit-based, competitive basis.
This approach would bring greater public sunshine to the
process and would allow us to determine the extent to
which Congress is involving itself in agency funding
decisions on academic research.
Nominations. Mr. Chairman, I have long been concerned
with the qualifications of many of the political
appointees who are nominated for important positions in
the government. In my opinion, many of these people come
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into office just to get their ticket punched, to enhance
their resume, and then move on. I requested the General
Accounting Office to look into this matter, and they
recently reported back to me that 31 percent of political
appointees have left their jobs in 18 months and some 50
percent are gone within 27 months. It is beyond me how we
can expect to effectively and efficiently operate Federal
departments and agencies -- many of them much larger than
our major corporations -- when turnover is so high and
when the qualifications of some individuals to begin with
are dubious. I have no wish to impinge on the President's
constitutional authority to nominate executive branch
officials, but the Congress also has a constitutional
obligation to advise and consent on nominations and to
oversee the agencies. I submit that it is our
responsibility, through our current committee system or
any other we may devise, to ensure that the individuals
nominated by the President for appointive office have the
qualifications for the position, and that we obtain a
commitment that their goal is not to punch their ticket
but to serve the President and the public.
I would also note that there are simply too many
political positions that the Senate must confirm. At a
time when it is quite clear that many agencies are adrift
because the President's nominees have not been confirmed,
we must consider a different approach to let new
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244
Administrations get down to business. Otherwise, we will
continue spending one year out of every four with a
government that, for all Intents and purposes, remains In
a holding pattern. Perhaps one approach, Mr. Chairman, is
to have fewer Presidential nominees who must go through
formal Senate confirmation, and allow the President to
simply appoint qualified individuals to other than the
most senior agency positions.
Rules and Procedures. Mr. Chairman, in ending my
comments on specific changes that Congress should make, I
want to suggest that we consider some alterations in our
rules and procedures. I think, for instance, that when it
comes to nominations and other business, at least in the
Senate, we should rethink the purpose of holds, which in
my opinion have been greatly abused in recent years. I
believe that the legislative hold has a legitimate purpose
in protecting the rights of the minority — one of the
great strengths envisioned by the Founding Fathers for the
Senate. Yet, when it is invoked to block specific
nominations to barter for pork, for instance, or to
retaliate for some White House slight, then the
legislative hold symbolizes not Madlslon's hopes for this
chamber, but only the arrogance of power. I think we need
to limit the time we allow for holds to stop the business
of the Senate to two legislative days -- which Is enough
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245
time to consider the position of the minority -- unless
members vote to extend the hold. Let me add, Mr.
Chairman, that I find particularly obnoxious the practice
of anonymous holds, which are used not to create dialogue
and compromise, but to prevent action altogether. I still
get angry recalling an anonymous Republican rolling hold
two years ago that prevented a compromise already agreed
to by both houses and by the administration to reauthorize
0MB 's Office of Information and Regulatory Affairs and the
Paperwork Reduction Act. Everyone had signed off on it,
0MB had agreed to it, but we still couldn't get it through
because of the anonymous rolling holds. We must change the
rules on this. At a minimum, I suggest that we do away
with the practice of anonymous holds. In the same way
that GAO no longer permits anonymous requests, we should
no longer permit anonymous holds; as a basic matter of
fairness. Senators have a right to know which members are
holding their legislation hostage.
I think that it might also be useful for the Senate
to reconsider its rules as they regard the germaneness of
amendments offered on the floor. My experience in managing
S.171, the Department of the Environment bill, showed
clearly how legislative deliberations can be dragged on
unnecessarily. Adopting some disciplined rules similar to
what the House requires on germaneness would certainly
help to speed legislation through the Congress.
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246
Additionally, we might consider asking the Democratic
and Republican Policy Committees to screen and offer an
opinion about legislation introduced on the floor which
has not been voted out of committee. Such a measure would
not prevent members from bringing their legislation to the
floor, but it might introduce some discipline into the
process that today does nothing to discourage all manner
of bills that perhaps we should not be voting on. This
way, with some sort of opinion provided by the policy
committees, we would at least have a better way to judge
legislation introduced on the floor.
I would also like to see the Senate pay more
attention than it does today to Rule 26, section 11(b),
which mandates that committees assess the regulatory
impact of the bills we consider. I would urge that we
strengthen the application of this rule as a way to show
the American people and the business community that we are
serious about reducing the burdens of undue government
regulations and paperwork requirements. In my opinion,
neither the Congress nor the executive branch are
sensitive enough to the concerns of ordinary Americans who
must deal with the impact of the laws and regulations we
impose.
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247
And in the same way that we take more seriously the
Impact on the American public of the legislation we pass,
so, too, do I think that Congress must improve its record
of making the laws it passes for the nation apply to
itself. I think that nothing irks the public more than a
Congress that refuses to abide by its own rules -- all it
does it perpetuate a feeling that what applies to everyone
else does not apply to us. And while I recognize that in
some areas constitutional issues may have to be faced,
there is no question in my mind that EEOC and OSHA and
other rules should apply to Congress and its employees . I
understand that we may not wish to be held accountable to
specific Executive Branch regulatory agencies, but we
might consider creating some legislative entity to adapt
relevant laws to Congress so that we are no longer seen as
being above the law.
Mr. Chairman, I will conclude my remarks this morning with
this final thought. There was a time when the United States
Senate stood at the apex of the American policy debate. The
public galleries would be packed as the statesmen and the
orators now celebrated in the history books debated the
fundamental issues of their generation. It is from the
inspiring words and honest exchange of those illustrious
Senators that makes me wish that we might again have a Senate
where members would gather to speak out on the issues of our
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248
generation, where the chamber might again be full with
statesman passionate about the impact of policies on the people
they represent, I think the Senate has a great role to play in
the difficult decisions that our nation must face for a
successful future, and it is a role that all of us, in the
model of Henry Clay and Daniel Webster, must play.
The joint committee has an historic opportunity to help
the Congress recapture its respect with the American people. I
urge you not to make reform for reform's sake, but to recommend
the kind of changes that will re-establish the connection
between people and their government, to suggest ways that
reinforce the conviction of our founding fathers that the
Congress would truly be the representatives of the people.
Thank you.
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249
TESTIMONY
OF
SENATOR WILLIAM S. COHEN
Before the Joint Committee on the Organization of Congress
June 23, 1993
Mr. Chairman, I am pleased to join my friend and
Chairman on the Subcommittee on Oversight, Senator Carl
Levin, in testifying on iegislath^e oversight of the executive
branch.
At a time when public confidence in government has
plummeted to an all time low and the national debt is growing
at a record pace. Congress must talce action to ensure effective
operation of government agencies and rein In the excessive
growth of federal spending. One essential means for Congress
to identify and eliminate wasteful spending, and generally
improve the operation of government, Is through its oversight
function. Oversight must include both the Identification of and
proposed solutions to problems.
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2
In a poll conducted earlier this month by CBS News and
the New York Times, it was reported that 98 percent of the
public feels, rightly or wrongly, that federal agencies waste
money with little regard to what is funded or the programs'
success. This perception is reinforced by recent reports of
unneeded and unwanted construction of federal office buildings,
federal warehouses filled with billions of dollars of unneeded
goods, and federal contractors charging the government 60
cents for Xerox copies. It is no wonder that the public's
distrust of government shows little sign of abating.
Based on polling data and the popularity enjoyed by Ross
Perot, it is apparent that the public does not yet believe that
Congress is serious about changing the way we do business.
The Joint Committee has a rare opportunity to restructure
Congress in a way that will emphasize the need for effective
independent oversight and demonstrate to the public that
Congress is serious about change.
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3
To understand the critical nature of, and need for
Congressional oversight, I think it is necessary to provide some
historical baclcground.
Congressional oversight of executive branch activities is a
fundamental and essential feature of American democracy. The
authority of Congress to conduct oversight is derived from a
number of constitutional provisions including the power to
organize the executive branch, the power of confirmation and
impeachment, the power to investigate and the power of the
purse. It was clearly the intent of the founding fathers, as
James IVIadison suggested, that the branches of the federal
government be, "doubly watched by the other."
Congressional oversight has been accepted and practiced
from the earliest days of the Republic and was largely
accomplished by using the power of the purse and periodic
investigations. In the early days, it was also somewhat easier
to accomplish gken the reiatkely small size of the federal
bureaucracy and the budget. In 1946, Congress saw the need
to formalize its oversight role and passed the Legislative
252
4
Reorganization Act which specifically required congressional
committees to oversee federal agencies and programs within
their Jurisdiction.
In recent years, the ability of the authorizing and
appropriating committees to conduct effective oversight has
been wealcened by a number of factors, including the growth of
the bureaucracy, the vested interest authorizing committees
develop in the perpetuation of the programs they have
approved, and pressure to deliver "programs" to their
constituents regardless of effectiveness.
The growth of the bureaucracy has made effective
oversight tantamount to controlling the forces of nature. For
example, the Agriculture Committee is responsible for
overseeing a Department with a $66 billion budget with over
113,000 employees to serve some 2.1 million farmers, in 1932,
the Department had 22,000 employees, a budget of $280 million
and served three times as many farmers (6.7 million). Yet
oversight was significantly easier because agencies did not have
huge staffs controlling information that came out of the
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5
departments. If Congress wanted to get an answer, it asked the
agency head and received a prompt reply. In today's
information age, the request goes to the agency's Congressional
Relations office and is routed through the bureaucracy to the
person who can (theoretically) answer the question. Frequently,
agency responses are not timely and important decisions get
made without sufficient information.
An additional factor which diminishes the ability of
Congress to conduct oversight is that committees often have a
vested interest in the success and perpetuation of the
bureaucracy they create and oversee. This is evidenced by the
number of authorizing committees that seek Cabinet level status
for their agencies. This Is typically done to signal the
importance of the agency's programs on the political spectrum,
but it Is also done because having jurisdiction over a
department rather than an agency is seen as more significant.
As agencies and special interests lobby key committee
members extensively and aggressively for additional funding and
expanded programs, individual members have a difficult time
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6
saying no - especially when constituents will benefit. As we
know, once a program makes It through committee, eventual
passage Is generally likely. It then, as the program is
implemented, becomes increasingly difficult for a member to
critically review what he or she helped create. Consequently,
only programs that are the "easiest" to kill get targeted for
review and elimination.
The situation I Just described underscores the need for
some form of independent oversight which is outside the
Jurisdiction of authorizing committees. If the authorizing and
appropriating Committees are combined, as I would like to see,
perhaps it would be appropriate to create specific oversight
committees to investigate waste, fraud and abuse; identify
mismanagement; review programs for efficiency, effectiveness
and performance; and determine If agencies are adhering to
congressional intent.
This type of system would accomplish three things. First,
it would ensure that programs receive periodic independent
review. Second, it would encourage much needed critical
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7
review of politically sensitive programs. Finally, tiie increased
odds of being the subject of congressional inquiry might
increase the economy and efficiency of agency operations if
they know they will be called upon to explain their actions.
Based on my experiences on the Governmental Affairs
Committee and the Senate Special Committee on Aging, I
believe this type of independent oversight is critically important,
provides valuable legislative contributions and saves billions of
dollars every year. For example, on the Governmental Affairs
Committee, where I serve as Ranking Republican on the
Subcommittee on Oversight of Government l\/lanagement, I have
pursued issues, ranging from procurement reform to passage of
the Clinical Laboratory Improvement Act (CLIA), that might not
have otherwise been explored. In a number of cases,
subcommittee reviews have saved not only billions of dollars
but, as in the case of CLIA, saved lives as well.
Over the years, the Subcommittee has also held a number
of successful hearings examining issues ranging from inspection
of food to excessive inventory at the Department of Defense,
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8
subjects that the subcommittee did not feei were receiving
adequate attention from the committees of Jurisdiction.
in addition, significant iegisiation has been deveioped from
subcommittee reviews in a wide variety of criticai areas. These
inciude, for example, the Competition in Contracting Act, which
required the government to purchase goods and services
competlth^eiy and resulted in billions of dollar savings annually;
the aforementioned Clinical Laboratory improvement Act, which
was Introduced In response to many concerns regarding the
accuracy of medical testing; the Independent counsel law, which
addresses conflicts of interest that arise when the executive
branch investigates allegations of criminal wrongdoing by high-
ranking government officials; and landmark Social Security
Disability iegisiation which protected thousands of disabled
individuals who were being wrongly denied benefits were all
initiated by the Oversight Subcommittee.
Also performing a criticai oversight role is the Senate
Special Committee on Aging where I also serve as Ranking
Republican. The Committee has examined a number of issues
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9
ranging from unscrupulous durable medical equipment suppliers
overcliarging medicare for heating pads, foam mattresses, and
wiieelchairs, to price gouging of tlie public by tiie
piiarmaceuticai companies. In many instances ttie Aging
Committee has followed up its oversight investigations with
legislation correcting abuses. Clearly, the government and
elderly would continue getting ripped off if it were not for
aggressive oversight by the Aging Committee. The committee's
worl( to expose these types of issues may save the government
and senior citizens billions of dollars.
The oversight function of Congress is not without its
critics. But, to suggest, as some staunch defenders of both
Republican and Democratic administrations are prone to do, that
oversight is excessively burdensome or intrusive to the
operation of the executive branch is simply wrong. One need
only to remember the Watergate hearings, Iran/Contra and $600
toilet seats to understand the need for congressional scrutiny
over executive branch operations. Vigorous oversight is not
only necessary, but essential to ensure the continued health,
vitality and integrity of the American political system.
258
Senator Carl Levin
STATEMENT BEFORE THE JOINT COMMITTEE
ON THE ORGANIZATION OF CONGRESS
Legislative-Executive Relations
June 24, 1993
I appreciate your invitation to testify before the Joint
Committee today and am particularly pleased with your
interest in looking at the role and conduct of congressional
oversight.
I have been involved in congressional oversight for over
14 years — from the start of my first term — and I have
found it to be probably the most rewarding work I do as a
Senator. But it isn't easy, and real progress comes only
with hard, detailed work and follow-up.
My own interest in oversight was born out of tr deep
frustration and anger I felt as the President of the Detroit
City Council in fighting with federal agencies over the
implementation of their programs at the local level . We
would go and lobby Congress for a particular program to
service a desperate need in our community, and although we
would succeed in getting the legislation we needed, the goal
of that legislation would often be thwarted by wasteful,
inflexible or arrogant implementation. I saw very clearly
how important it was for Congress to follow up on how
agencies implement federal programs in order to get the
intended job done.
When I was elected Senator in 1978, I asked
then-Chairman of the Governmental Affairs Committee, Abraham
Ribicoff, for a subcommittee from which I could conduct
oversight of federal progreuns . I was lucky that Senator
Ribicoff shared the same concerns and assigned me the
chairmanship of a new subcommittee — the Subcommittee on
Oversight of Government Management. Senator Cohen joined me
as Ranking Republican, and we have served on that
subcommittee — trading off stints as chairman and ranking
member — for almost 15 years. We've looked at waste and
mismanagement in a broad array of federal programs —
everything from improper terminations and denials of benefits
in the Social Security Disability program to IRS abuses to
the tremendous excesses in the DOD supply system to the huge
backlog in collecting countervailing and anti-dumping duties
to the waste of hurry-up, year-end spending to inadequate
debarment and suspension procedures for preventing government
contracts with contractors who cheated or provided shoddy
go -"= to the gove -"jnent in the pac^- , and a large "umber of
259
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programs in between. We've seen how the oversight process
works and what it takes to make it work.
Over the years my support for congressional oversight
has only increased. I think we need to do more oversight and
we need to follow through more fully on the oversight we now
do. There's no doubt about it — it's far easier to hold a
hearing on a piece of proposed legislation and hear from the
affected parties than it is to dig into the details of an
existing program and root out the cause of a management
problem or identify real waste. One thing your committee can
do is highlight the importance of congressional oversight and
retain a structure for the conduct of meaningful oversight in
whatever you propose .
Let me first comment on the oversight that we now do.
Too often we i^rnore the oversight work that is already being
done. The __iiate Committee on Banking, for example, in
analyzing the causes of the HUD scandal involving the Section
8 Moderate Rehabilitation Progrcim in the 1980s, found that,
in part, "Congress did not pay attention to a number of
reports which highlighted on-going problems at HUD,
especially the IG semiannual reports." Out of concern that
many of these reports and warnings go unheeded, or if
noticed, go unaddressed, I recommend that the committees of
jurisdiction be required each year to hold a hearing on the
prior year ' s reports by the GAO and the relevant inspectors
general on the programs for which the committees are
responsible. This would at least be one way of assuring that
the Members and the public are made aware of and consider the
most important management concerns and recommendations for
corrective action by key agency officials and the GAO. Too
often these recommendations lie on the shelf and are unheeded
because they are not brought personally to the attention of
members in a position to act on them.
Moreover, congressional committees should require — as
part of the budget process — that the agencies over which
they have jurisdiction annually report on the actions they
have or have not taken in response to the outstanding IG and
GAO recommendations.
I also think we should make a greater effort to draw on
lessons learned in the oversight process for purposes of
other agencies and progrcims. We should use what we learn
from our oversight investigations to set standards and
principles for other federal programs. I think the Office of
Management and Budget, working with the Congress, should take
the lead in identifying key elements which the oversight
process shows are necessary for good program management and
possibly develop models which could be used when creating a
new or restructuring an old federal program.
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3 -
GAO, at my request, is currently analyzing existing HUD
loan guarantee programs to determine what elements are
necessary in other loan guarantee programs to protect the
government's interests. Once that is done, it could be used
as a model — made available to all congressional committees
working in thi= area — to reform existing and create new
loan guarantee programs. Similar work could be done on other
types of programs.
As for increasing the amount of oversight, we spend too
much time creating and trying to pay for new programs without
doing the detailed work of overseeing the operations of the
programs we already have. The work of this committee can be
very helpful in this regard by streamlining the number and
types of congressional committees and thereby giving Members
more time to delve more deeply into the programs that they
oversee. So I add my voice of encouragement to you in this
effort.
One unfortunate feature of our current congressional
oversight process is that it comes about in an ad hoc
fashion. What progrcims are reviewed is somewhat
unpredictable. A member or staff person may have read an
unnerving newspaper article; a whistleblower may have called
and identified a problem that management continues to ignore;
a constituent may raise a question or call an agency practice
into question; a finding of an Inspector General may catch
the eye of a member or staff person. What we look at doesn't
necessarily depend upon a set of priorities, but depends upon
any number of possible circumstances and events. I think we
should strive for a better, more organized approach to
oversight.
Over 10 years ago our Senate Governmental Affairs
Committee, in its enthusiasm for congressional oversight,
reported to the full Senate a bill that we called "sunset"
legislation. It was a whopper. It would have required the
reauthorization of every single federal program — regardless
of size or significance — every 10 years. If the program
wasn't deemed fit for reauthorization, it would die. Simple
as that. Our enthusiasm, however, exceeded our capabilities,
I think, and we didn't adequately understand the size of the
task we were asking Congress to undertake. When we got the
computer printout which showed how many programs would have
to be reauthorized every year, the number was mindboggling —
so mindboggling that the bill would have sunk Congress under
the weight. The bill was never taken up by the full Senate
and died a somewhat quiet death on the Senate calendar.
While that bill attempted too much, I remain supportive
of "sunset" legislation — at least for certain or a limited
number of federal programs. I know in my subcommittee we
have had limited authorizations for several programs and
offices over which we have jurisdiction and every time we
261
have to reauthorize those entities, we identify specific
improvements we can make to produce better, less costly and
more effective results. So I think this Committee could
encourage each committee to select those programs or agencies
for which sunset review should be conducted and construct a
reauthorization schedule on that basis. Priorities should be
determined depending upon criteria, including the amount of
money at stake, clarity of the cost benefit value of the
program, and the likelihood of waste or fraud in the
program. Each committee would follow its sunset agenda as
the authorizations for various programs and agencies expire.
The committees would not place every agency or program on a
sunset review cycle, but should be encouraged to sunset as
many programs as appropriate.
Having served on the Senate Governmental Affairs
Committee for my entire service in the Senate, I also believe
that it is imp'-irtant that there be a committee in each b'^use
of Congress that has government-wide jurisdiction on
cross-agency issues, like management and procurement and
ethics. The iron triangle referred to in political science
classes can be real. Committees with direct jurisdiction
over an agency, despite their best intentions, can sometimes
get caught in a non-objective relationship with the
regulating agency and the regulated community. A committee
like Governmental Affairs, however, does not have the
day-to-day relationship with the program constituencies and
can often step into a program review in a more bold manner.
Moreover, a committee like Governmental Affairs can draw on
lessons learned from oversight of other agencies in solving
and analyzing similar problems in an agency under review.
Finally, I want to talk about two organizations that
assist Congress in conducting oversight — the General
Accounting Office, or GAO, and the Inspectors General. The
GAO is a vitally important entity for the conduct of
oversight. Despite some criticism to the contrary, I think
GAO has proven itself to perform an independent investigative
and audit role far beyond the capability of committee staff.
The Governmental Affairs Committee is in the process of
conducting a major audit and review of the operations of GAO,
since that hasn't been done before that I know of, and I
think that is a timely and wise decision. But in responding
to the isolated pockets of criticism about this very
important organization, we should consider how to improve and
make more efficient its assistance to Congress as opposed to
taking any move to cut back its responsibility. So to with
the Inspectors General — I believe their work has been
enormously important to the cause of good oversight.
To sum up, then, I make the following recommendations:
1 — Overall, there should be an increased emphasis
by congressional committees on oversight and more time for
262
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Members to conduct oversight. I think your work in
streamlining the number of committees in Congress can be verv
helpful in that direction. ^
2 —In order to make better use of the oversight
work that is already being done by the GAO and the Inspectors
General, committees should be required to hold a hearing each
year on the prior year's findings of the GAO and inspectors
general with respect to agencies and programs in their
jurisdiction.
3 — Committee should also be encouraged to sunset
as many programs and agencies as appropriate to encourage the
conduct of oversight review on a regular basis.
4 — The Senate and House should retain the
committees of cross-agency jurisdiction to enhance the
conduct of oversight.
5 — The work of the GAO and the Inspectors General
should be strengthened and reinforced, and GAO and Inspector
General reports and recommendations should be an integral
part of any program reauthorization or review process.
Those are a few suggestions. The bottom line is that
the congressional oversight process is vitally important to
the conduct of good government. it needs improvement and
expansion, and I hope your committee takes us on the path to
achieving it. Thank you.
263
i.
( iiT
EY
DISTRUST
Building Bridges
Between Congress
and the
Executive
fi*r'-\
A Report by a Panel of
The National Academy
of Public Administration
264
BEYOND
DISTRUST
Building Bridges
Between Congress
and the
Executive
Panel on Congress and the Executive
James R. Jones, Panel Chair
Thomas H. Boggs, Jr.
Alan S. Boyd
Hale Champion
Martha Derthick
John N. Erienbom
Joseph L. Fisher
Alton Frye
Harry S. Havens
Matthew Holden
Frank Horton
Melvin R. Laird
Howard Messner
Terry Sanford
Allen Schick
James Sundquist
Alair Townsend
Joseph R. Wright, Jr.
NATIONAL ACADEMY OF PUBLIC ADMINISTRATION
Washington, D.C. January 1992
265
4
The High Cost of
Interbranch Confrontation
This chapter contains the panel's value judgments of the aggre-
gate evidence. The chapter also introduces the framework for
the panel's recommendations.
The panel's inquiry produced a rich and detailed portrait of congression-
al-executive performance during this era of divided government. The re-
sults are complex and paradoxical, reflecting the difficulty and sheer mag-
nitude of contemporary problems. The panel's charge is to use its experience
to judge this evidence and to recommend ways to improve policy imple-
mentation through a better congressional-executive relationship.
STUDY CONCLUSIONS
The case study evidence, in the context of the forces of change, surprised
the panel: Contrary to widely held views, difficult situations were often
improved as a result of congressional intervention; yet, in the panel's judg-
ment, neither Congress nor the Executive Branch was strengthened institu-
tionally, nor was the overall decision-making system improved by these
temporary adaptations.' The panel addresses this paradox by drawing seven
conclusions.
1. Both Congress and the Executive Branch have all too often disregard-
ed their responsibilities for broad policy making and effective man-
agement of federal programs. Both branches urgently need to adapt
their behavior and their institutions if the nation is to achieve ac-
countable and effective governance to meet the challenges directly
ahead.
87
266
88 BEYOND DISIKUSI
The nation faces enormous and fast-changing problems in domestic poli-
cy, defense, and international affairs. Yet there is a tendency in both branches,
in these cases, to take a limited, narrow view of policies and programs.
Broad, cross-cutting policy is more difficult to develop and implement with
such a detailed focus.
Neither branch stands up for performance-oriented program management
or for the development and maintenance of an infrastructure that will ensure
it. Both branches suffer from lack of reliable and relevant intelligence to
facilitate effective executive implementation and congressional oversight.
The result is a lack of attention to the largest, most urgent problems, which
can lead eventually to crisis.
Effective governance under modern circumstances requires far greater
emphasis on shared powers, negotiation, shared accurate information, and
cooperative management than on the classical doctrine of the separation of
powers. The nation is in an era in which familiar labels are no longer
descriptive and conventional wisdom provides limited guidance. The Con-
stitution permits a range of possibilities for arranging the power to self-
govern. The current political profile — wherein the division between Con-
gress and the Presidency is also a division between Democrats and
Republicans — pushes the limits of institutional procedures and relationships
fashioned for an earlier time.
The net effect is a sense of urgency for deliberate actions to avert a
crisis. The outright confrontation and increasingly competitive relationship
between the two branches — conducted in agency-committee venues as well
as presidential-congressional relationships — has a high cost: a political
system more and more unresponsive to the nation's problems and unac-
countable to the American people for addressing those problems.
2. Inadequate interbranch communication and collaboration result in
misunderstanding and counterproductive performance by both branches.
Structure and process are important in creating the conditions for
shaping effective policy. But structure and process cannot be a proxy
for substantive communication, information sharing, and constructive
problem solving between the branches.^
The researchers found in each case poor or inadequate interbranch com-
munication, shared information, and collaboration, often resulting in misun-
derstanding and counterproductive performances by both branches. These
communication problems were compounded by the contrast in organization-
al cultures, perceptions, constituencies, and senses of mission that exist
between congressional units and corresponding executive agencies.
The absence of routine, accurate information flows between the branches
267
on program implcnienlalion prccipitalcd congressional intervention (usually
preceded by growing suspicion of executive performance) and occasionally
impelled Congress to create quasi-independent commissions and boards to
fulfill the need for trusted policy and program information.
3. Colli' ress does, at times, interfere with the Executive Branch's man-
agement of programs for parochial or political reasons; however, the
criticism of congressional micromanagement can be easily overstated.
In the cases the panel examined. Congress was more constructive in
policy and program implementation than its critics or the panel ini-
tially supposed.
Some of the criticism of congressional micromanagement of program
administration — to the detriment of program performance — is overstated when
compared with the specific policy issues we examined. In some cases,
without congressional intervention, legislative objectives would probably
have been thwarted. If one discounts some of the negative institutional
implications. Congress was more constructive in policy and program imple-
mentation than its critics or this panel initially supposed. The pejorative
term congressional micromanagement thus does not always represent or
accurately describe congressional intervention in administrative details.
In some cases. Congress did involve itself to promote narrow, parochial,
or institutional concerns in ways that diverted attention away from achiev-
ing basic program goals. For example, funds and projects were earmarked
for political and historic — rather than current programmatic — reasons. The
result often was unproductive battles between the branches at the expense
of attention to severe policy problems (e.g., transportation infrastructure;
health care costs; safe, permanent storage for nuclear waste). Anecdotal
evidence, of the sort catalogued by the Heritage Foundation and the Ameri-
can Enterprise Institute, is still abundant that antiquated and unnecessary
congressional meddling frequently occurs.^ Hundreds of congressionally
mandated executive reporting requirements, for example, still drain scarce
executive resources in exchange for what many regard as very limited bene-
fits.
4. Congress now does part of the job of the Executive Branch; it some-
times perceives it has little choice but to do so because Executive
Branch difficulties — delays, cost inefficiency, program breakdown, ex-
ecutive refusal to adhere to congressional directives,"* even outright
management failures and deceit — all but impel it to intervene at the
administrative level. Congress does not have and cannot create the
resources to intervene effectively as an administrative manager across
the enormous range of governmental programs. Yet increased con-
268
90
BEYOND DISTRUST
gressional interventions are unavoidable unless the Executive Branch
(1) fulfills its responsibilities with renewed determination, vigor, and
management skill consistent with congressional mandates and (2) re-
organizes and upgrades its managerial systems accordingly.
Although Congress does, at times, interfere with the Executive Branch's
management of programs for parochial or political reasons, the case study
evidence suggests that Congress often intervenes in order to fill a manage-
ment vacuum created when the Executive Branch is not meeting its respon-
sibilities in accordance with congressional expectations. In most situations,
the administrative issues should have been addressed in the Executive Branch,
with or without prompting from Congress. Examples of the critical short-
falls in executive performance include:
• Providing poor information. The errors were generally more those of
omission than commission. But in at least one case, AMRAAM, there
is evidence of intentional deceit.
• Refusing to follow specific congressional directions as stated in legis-
lation."^
• Neglecting to propose solutions to recognized problems that were clearly
understood to be the responsibility of the executive agency involved.
• The Office of Management and Budget's lack of focus on managerial
and organizational effectiveness and program results.
• Protracted and intense conflict among OMB, Executive Branch agen-
cies, and Congress over budgetary and regulatory issues, which in
some cases invited congressional intervention.
The Executive Branch effectively hands over its managerial role when
it fails in its job of administration. The reasons are often complicated.
Administrative skirmishes between the branches can flow from broader,
long-standing conflicts between Congress and the President over federal
policies and programs — conflicts sometimes made more pointed by divided
party control of the two branches. Under circumstances of policy disputes,
executive agencies can be caught in the cross fire making it difficult for
them to propose solutions or comply with congressional guidelines (e.g., the
Medicare Prospective Payment System case). Outcomes are typically the
products of extremely complex and prolonged interactions among and with-
in the branches, often all three of them, along with various associated client
groups. But whether caught in a policy dispute, a program breakdown, or
network of conflicting interests, when the Executive Branch cannot meet its
269
THE HIGH COST OF INTERBRANCH CONFRONTATION 9/
responsibilities in accordance with congressional expectations, the vacuum
will somehow be filled. In the cases we studied, it was filled by Congress.
Joint congressional-executive involvement in policy implementation is a
natural and inevitable product of American government. Some blurring of
responsibility is actually built in to prevent tyranny, protect liberty, and
promote good government and service to the public. Congress has always
been interested in the details of policy and program implementation, and
this is not likely to change. But congressional involvement has increased
and intensified in recent years, and this is likely to continue. Changes in
both branches are needed, but increased congressional interventions are un-
avoidable unless the Executive Branch fulfills its responsibilities and reor-
ganizes and upgrades its managerial systems accordingly.
5. When Congress intervenes extensively in administration, it risks its
capacity for appropriate, systematic, and uncompromised oversight.^
Congressional interest in policy implementation and program manage-
ment is legitimate because it leads to oversight of policy. Notwithstanding
the need for intervention. Congress risks the effectiveness of its roles when
it intervenes, excessively in implementation:
• As Congress spends more time intervening in executive details, better
program implementation may result. But in doing so, Congress neces-
sarily gives less attention and fewer resources to broad-gauge legisla-
tive policy making and performance-oriented oversight.
• Congressional committees can become so involved in the supervision
of (and functional responsibility for) program administration that it
becomes difficult if not impossible to maintain the arm's-length rela-
tionship essential to effective oversight.
6. When Congress substitutes its expertise for Executive Branch respon-
sibility to implement policy and manage programs — even though it
may be intervening because of Executive Branch difficulties—accountability
for policy implementation and program management often breaks down.
Accountability is central to the democratic process. It often breaks down
when, as a result of congressional intervention in administration. Congress
substitutes its expertise for Executive Branch accountability to implement
policy and manage programs — even though Congress may be intervening
because of Executive Branch evasions. It also breaks down when the net-
work of quasi-independent commissions, offices, boards, agents, and staffs
takes on traditional executive roles, conducts congressional oversight func-
270
92 BEYOND DISTRUST
tions, and becomes a permanent rather than an ad hoc feature of govern-
ment.'
In both cases, the boundaries between the constitutional branches as they
are traditionally understood are blurred so that neither branch is account-
able— or at the very least that accountability for government's performance
is likely to be obscured. Players in both branches can circumvent account-
ability. Congress can avoid making explicit policy goal statements and
immerse itself in a sea of specific procedural detail. The Executive Branch
can blame Congress for directing it to conduct ineffective implementation
initiatives — that are not "best" in the policy sense. ^
The relationship between Congress and the Executive Branch has be-
come not a cooperative enterprise so much as a marketplace for competing
demands and alternative political responses. If either branch fails to exer-
cise its responsibilities, the other branch will step in to substitute its agenda
and expertise. This situation so alters and obscures the core responsibilities
of the branches that no one takes responsibility for the big problems that
develop. Ultimately, the nation suffers because performance is uneven,
unreliable, and unaccountable.
7. Unable to rely on the Executive Branch for trusted, accurate, and
timely information and reliable program management. Congress has
constructed a managerial capacity more responsive to its own needs
in the form of a permanent set of commissions, boards, offices, and
agents within and between both branches. The accountability and
effectiveness of such devices is open to serious question.
Congress has developed and sustained many relationships with actual
providers, vendors, and local managers — officials, agents, and institutions
that were formerly part of or in close association only with the Executive
Branch as part of its role in providing services. The result, all too frequent-
ly, is that the Executive Branch is bypassed as an ill-equipped Congress
attempts to implement programs on its own.
All too rarely do either Congress or the Executive Branch focus on broad-
scale managerial capacity-building in the Executive. This has led to creat-
ing managerial capacity in Congress (e.g., with the creation of commis-
sions, boards, offices, and agents). Meanwhile the need to build managerial
capacity in the responsible executive departments and agencies has been
neglected. In the long term, this risks the erosion of Executive Branch
capacity for accountable and effective program development and implemen-
tation. The result almost certainly will be a less effective — and more ex-
pensive— government.
271
THE HIGH COST OF INIJRBRA NCH^CON^FRONTA TION 93
TOWARD ACCOUNTABLE AND EFFECTIVE GOVERNANCE
Even when congressional intervention in administration is a constructive
response to Executive Branch weaknesses, accountability is likely to be
diffused and major problems left unattended. This paradox of modern gov-
ernance is troubling, because the ability of the nation to handle its public
responsibilities is eroding. Yet the attention of two most powerful forces
that could reverse the situation — Congress and the Executive Branch — seems
to be elsewhere.
The solution is not a simple "Congress should intervene less and oversee
more." Such a conclusion would be a one-sided demand that Congress
retreat and the Executive Branch return to its old ways. New models of
organization and management practices are needed within and between Congress
and the Executive Branch. The reorientation of presidential-congressional
relationships and agency-committee relationships is imperative. Policy makers
and staff should try to design and implement services so that accountability
is clearer, professional standards are valued and protected, performance is
emphasized, and information flows provide a sound foundation for policy
debate.
The panel's recommendations point to some initial ways to begin to
address the paradoxical problems. In the next four chapters, these recom-
mendations are presented within four broad challenges — the need for Con-
gress, the President, and the Executive Branch, separately and jointly, to:
• Build new bridges for productive relations between the branches;
• Provide leadership for broad policy and planning;
• Improve executive information and congressional oversight; and
• Strengthen the structure of executive functions.
The central theme of the panel's recommendations is the need for new
bridges, new activities, and new relationships to reduce the difficulties be-
tween Congress and the Executive Branch and improve program perfor-
mance. To create more effective relationships, each branch must have ap-
propriate internal capacity to engage the other. Each branch must also
support organizational devices that respond to contemporary problems and
bridge their institutional boundaries, at the same time preserving fundamen-
tal prerogatives of constitutionally separated institutions.
NOTES
'Matthew Holden, Jr., takes the position that the panel has not engaged in an
analysis that would allow it to reach a judgment on this point. The report says that
272
94 BEYOND DISTRUST
difficult situations were improved as a result of congressional intervention. Is it
plausible that that is all that was intended? If so, why is that not a success? If
something more fundamental was supposed to have happened, what was it and how
do we judge it? One finds it hard to believe that the panel was not, like most
educated Americans, so filled with the Brownlow doctrine that everything depends
on presidential leadership that it was hard put to live with the results of its case
studies. Martha Derthick concurs.
- Matthew Holden. Jr.. agrees with this, but thinks the point is more far-reaching.
If the interests in society are fundamentally in conflict, then no amount of substan-
tive communication will lead to problem solving unless (1) the interests are recon-
ciled (the work of political negotiation) or (2) one set of interests is powerful enough
to override another. Martha Derthick concurs.
^ Gordon Crovitz and Jeremy A. Rabkin, The Fettered Presidency: Legal Con-
straints on the Executive Branch. Washington, D.C.: American Enterprise Institute,
1989; Gordon S. Jones and John A. Marini, The Imperial Congress. New York:
Pharos Books, 1988.
^ Martha Derthick comments: As I said above. I have been unable to detect in the
case studies a pattern of refusing to follow specific congressional directions.
^ Martha Derthick comments: As I said above, I have been unable to detect in the
case studies a pattern of refusing to follow specific congressional directions.
^ Matthew Holden, Jr., believes it is plausible that Congress may be overcommit-
ted in detail, but the panel might have considered further that is the reason Congress
is incomparably the strongest legislative body in the world of major democracies.
Compared to it, the British parliament and most of the European nations' parlia-
ments are mere ratifying bodies for the executive of the day. The reason precisely is
that it is access to detail that constitutes power. Martha Derthick concurs.
^ Harold J. Krent, "Fragmenting the Unitary Executive: Congressional Delega-
tions of Administrative Authority Outside the Federal Government." 85 Northwest-
ern University Law Review 1 (1990), p. 62-112.
* Martha Derthick comments: This discussion presumes that the U.S. Constitu-
tion allocates responsibility between the Executive and Legislative branches in a
way so neat and clear that the public should be able to tell by watching whether each
is performing properly. I believe that the Constitution, for better or worse, does just
the opposite. It invites precisely the perplexing struggle that we witness. Account-
ability is sacrificed in this struggle, but abuses of power are contained.
273
SENATOR WILLIAM V. ROTH, JR.
TESTIMONY ON IMPROVING CONGRESSIONAL OVERSIGHT
JOINT COMMITTEE ON THE ORGANIZATION OF CONGRESS
JUNE 24, 1993
Thank you for this opportunity to suggest to the Joint
Committee how congressional oversight might be improved. I
do have a specific recommendation for either a statutory
requirement, or a change to House and Senate rules, which I
strongly believe would result in more effective oversight by
committees of Congress .
A common shortcoming of the existing oversight process,
by which Congress reviews the efficiency and effectiveness of
federal programs and agencies, is the lack of objective
standards of performance. In order to fairly evaluate a
program, there needs to be some pre-established "benchmarks"
against which to measure that program's success. Otherwise,
an oversight hearing becomes largely a recitation of
anecdotal items , cast without adequate context within which
to draw accurate generalizations.
S. 20, the Government Performance and Results Act, will
partially address this problem. It will require agencies to
develop annual performance plans with measurable program
goals, and to file annual performance reports. However, I do
not believe that having agencies alone set program goals is
sufficient. Congress itself should play a direct role in the
establishing of at least some of those goals. Congress
creates and funds the programs , so it ought to give some
indication as to what it expects them to accomplish.
This is not micro-management; in fact, it is just the
opposite. Determining what results a program should achieve
is the essence of policymaking. It is what really guides a
program's direction. But Congress rarely does that, so it
falls upon the progreum managers to determine the objectives.
Then Congress will often try to steer a program's direction
by interceding in its day-to-day operations — which is
micro-management. What we end up with is the managers trying
to set policy, and the policymakers trying to manage — not a
prescription for good government.
If, on the other hand. Congress specified a few specific
goals in its authorization and appropriation legislation,
agencies could then develop a more detailed hierarchy of
goals — all aimed at eventually achieving the Congressional
objectives.
274
At a May 9, 1991, hearing on how to improve
Congressional oversight held by the House Ways and Means
Conunittee, former Carter Administration 0MB Director James T.
Mclntyre recommended that,
To facilitate the oversight process, standards to
measure each program should be included in its
authorization or reauthorization. The
Congressional Budget Act should be amended to
require this. The standards should be in
quantitative terms. Even qualitative goals should
be specified quantitatively. The standards should
be part of the legislation itself, not conference
report language. The conference report on all
reauthorizations should explain how the progreim's
performance compares to the goals set.
The need for Congress itself to set program goals is
clearly one of the major lessons of the recent HUD scandals.
After looking at those problems, the Congressional Oversight
Panel of the National Academy of Public Administration
strongly recommended that.
Congress should set performance goals . . . that
provide a better match between those goals and the
resources likely to be available for
implementation. . . . Congress should . . .
provid[e] in authorizing statutes criteria by which
to measure program effectiveness.
In May 1990, the Senate Banking Committee's HUD/Mod
Rehab Investigation Subcommittee held hearings on the abuses
at HUD. That subcommittee received testimony from several
expert witness who emphasized the need for congressional
program performance goals in order to prevent future
scandals:
Within the agencies, people will want to know what
is it that Congress defines as the indicators for
how well a program is doing.
Bert Rockman, Brookings Institution
Quite frankly, sometimes the Congress does not want
to really clarify what the indicators are, either.
It is easier to keep it somewhat confused. That
creates additional problems for the agency.
Richard L. Fogel, Assistant Comptroller
General, General Accounting Office
... we must look at the legislative history of
the statute itself, and articulate the objectives.
Quite often we find that sometimes those are not
very clear and are quite difficult to comprehend.
275
Paul A. Adains, Inspector General, Department
of Housing and Urban Affairs
Preventing more HUDs ultimately is a continuous
process of improving program goals in law and
testing agency performance against them. . .
Richard A. Wegman, National Academy of Public
Administration
And most recently, at the Senate Governmental Affairs
Committee hearing of March 11, 1993, David Osborne, the
author of the book "Reinventing Government", testified that.
Some of the lessons from abroad and from State and
local governments tell us that unless a legislature
puts performance targets in its appropriations,
they will never be taken terribly seriously. You
have to force legislators who are appropriating
money to define the outcomes that they want. . .
Unless it is done, the performance reports will sit
on the shelf.
As these comments suggest, good management starts with
clear policy direction, and that is the responsibility of
Congress. The failure of Congress to establish program
performance goals is an open invitation to program abuse and
mismanagement — and it makes objective oversight much more
difficult.
I do not believe that requiring Congress to specify a
few program performance goals is unreasonable or infeasible.
Congress has an obligation to tell the American taxpayers
what results we intend for the money we spend. This should
be a requirement either of law, or of House and Senate rules.
276
STATEMENT OF ROBERT W. KASTENMEIER
BEFORE
THE JOINT COMMITTEE ON THE ORGANIZATION OF THE CONGRESS
June 29. 1993
It is both a pleasure and an honor for me to be here today, particularly with
a panel consisting of two of the most thoughtful and prominent members of the
federal judiciary, federal appellate Judges Pat Wald and Kosinski -- and also
Professor Bob Katzmann, a scholar of national prominence with
respect to the Judiciary and the Congress. The subject of the relationship of the
Congress and the Federal Judiciary is an important one. My understanding is that
you have chosen to focus on the specific subject of legislative history and
statutory interpretation.
There are a number of current issues that concern the two branches.
Parenthetically, I chair an agency called the National Commission on Judicial
Discipline and Removal that deals with the important issue of impeachment,
discipline and disability and while issues of communication between the branches
-- issues of funding, jurisdiction and other matters - are relevant, none is more
important that the legislative process and judicial review of legislation -- certainly
for the Congress. ._
Although I spent 32 years in the House of Representatives, unlike my fellov^
panelists I am neither an expert nor a student of the subject. Like most who serve,
I was, rather, a generalist. I did, however, chair a judiciary subcomnhittee on
Courts, Civil Liberties, Intellectual Property and Administration of Justice and
increasingly became interested in problems affecting the federal judiciary. In the
1988-1989 period it was evident that a view was emerging, primarily attributed to
Justice Scatia, that congressional legislative history was unreliable and the judiciary
would do well to resort to a "plain meaning" or textual rule for interpreting federal
statutes. This point of view was ventilated at one or more symposia during this
period including one dealing more broadly with congressional judicial relations
arranged by Professor Katzmann. This view and its implications were also featured
in The New York Times, The Washington Post and other papers as well as in
congressional journals. Congressional Quarterly in particular. I mention this
because while the subject of legislative history has been authoritatively written
about in law review articles by Judge Wald and Judge Kosinski, it had by 1990
achieved a popular political prominence, and on April 19, 1990, I held a hearing on
the subject. Two of my fellow panelists were witnesses that day.
If I were to be surprised at all it would be at the lack of concern of fellow
members of Congress about the new plain meaning doctrine and the reasons for it.
277
It is a given that legislation that becomes law is frequently, very frequently,
flawed, and the legislative process is imperfect. The subject of legislation may well
be a battleground between conflicting ideologies, economic interests involving
partisan considerations sometimes pitting the House v. the Senate or the Congress
V. the Executive, errors arise, ambiguities go unresolved, meaning is obscure,
definitions may be missing.
Nonetheless a judicial review policy that says your reports, colloquies,
hearings are untrustworthy and unreliable and will not be used to divine legislative
intent is an assault on the integrity of the legislative process that cannot in my
view be condoned. As the Federal Judiciary is appropriately concerned about
judicial independence, so Congress must be about the integrity of the legislative
process and challenges to it. It is akin to the court stripping initiatives of the 1970s
intended to punish the federal judiciary for unpopular constitutional decisions of the
prior decade.
It is now 1993 and I do not see a great rush on the part of the federal
judiciary to embrace the textualist doctrine. Rather I see the judiciary more
interested in opening communications with the Congress than confronting it by
disdaining its work.
But tensions, perhaps serious tensions, between the two branches remain,
and one could envision a worst-case-scenario with a long term war developing
between Congress and the Judiciary in which both sides fare poorly; loss of
jurisdiction, loss of funding, and a judiciary siding with the executive branch.
I think it more likely that we ought to light a candle rather than curse the ^
darkness. Professor Katzmann has brought about a project to cause decisions
dealing with troublesome statutes to be especially conveyed to the tongress, to its
leadership, to legislative counsel and to the relevant committees. This experiment
approved as an experiment involving the D.C. Circuit is well along and we
hopefully expect the Judicial Conference will in due course encourage all circuits to
participate^Jhis is a small first step - others can follow.
Finally I would make a series of recommendations. Some are self-evident
and would be irrespective of the judicial review doctrine employed:
(1) review returned decisions;
(2) have special courses for new House and Senate members in legislative
history and statutory constructions and the legislative process - have
comparable course for new judicial officers;
(3) give legislative counsels' offices more review authority over proposed
legislation;
278
(4) make mandatory legislative checl< list, i.e., statute of limitations,
federal preemptions state law intended, etc. Do not needJudicial Impact
Statement;
(5) avoid to the extent possible massive omnibus bills and hastily
considered last minute before adjournement sine die legislation (insure some
review);
(6) have more frequent oversight hearings or sessions on legislative
history. Make sure judiciary is well represented;
(7) check to see how "revision of laws" project is proceeding;
(8) I do not recommend a return to extensive legislative preambles to
regional legislative intent;
(9) Others recommend that committee reports be signed by all committee
members to give the document greater authenticity. That may or may not be
a good idea in practice; and finally
(10) Still others recommend expanding the canons of legislative
construction in Title 1 of the U.S. Code. I do not have a view about this, but
it ought to be explored.
Legislation is our craft, how well Congress does the job.of writing statutes Is
central to the integrity of the institution. In the months and years to come, as you
move toward greater congressional effectiveness andstrengthing congressional '*
integrity, there is no more compelling issue than the one before you today.
279
STATEMENT OF THE HONORABLE ALEX KOZTNSKI OP THE UNITED STATES
COURTS OF APPEALS FOR THE NINTH CIRCUIT
BEFORE THE JOINT COMMITTEE ON THE ORGANIZATION OF CONGRESS
Mr. Chairman, Members of the Committee, Distinguished Fellow
Panelists:
I thank the Committee for inviting me to express my views on
a subject so critical to the balance of powers in our government.
I suspect, however, I may have been invited because I'm rumored to
believe that the only legitimate use of legislative history is to
prop open heavy doors or to put under the seats of little children
not quite tall enough to reach the table. I hope X will not dis-
appoint you by taking a slightly more moderate position today.
I do believe there are some theoretical and practical dif-
ficulties in deriving wisdom from the legislative record of a com-
plex statute. Some of the problems include figuring out whose
views are embodied in a committee report; determining whether
floor statements reflect the views of anyone except the particular
speaker; and accounting for the President's role, if any, in mak-
ing or approving the legislative record.
At the same time, I'm ready to admit that legislative history
can be an immensely valuable tool for resolving certain types of
problems in statutory interpretation. First and foremost, legis-
lative history helps courts understand what problem the legisla-
ture way trying to solve. Especially where some time has passed
between a statute's enactment and its interpretation, legislative
history can provide insights into the statute's historical con-
text. And it can expose assumptions shared by both proponents and
opponents of the legislation — especially where the assumptions
280
page 2
seemed so obvious that no one bothered to articulate them in the
statute. These are just a few examples of ways legislative his-
tory can help courts make sense out of statutes that don't make
sense by themselves.
The problem is, in recent years, courts have allowed leg-
islative history to do much too much of the work of interpretation
and this has had adverse effects on the legislative drafting pro-
cess. Because my time is limited, I will offer only two examples
— each illustrating somewhat different aspects of this problem.
The first involves a totally boring housekeeping statute — some-
thing few people even in Washington know or care much about. As
you've probably guessed, I'm talking about 28 U.S.C. S 1491(a)(3),
enacted by the Federal Court Improvements Act of 1982. Because
one or two of you here may have forgotten the precise language of
this section I will quote it:
To afford complete relief on any contract claim brought be-
fore the contract is awarded, [the United States Claims
Court, now the Court of Federal Claims] shall have exclusive
jurisdiction to grant declaratory judgments and . . . equi-
table and extraordinary relief ... .1/
Note that I cmphasize_d the word exclusive. I think it's a
pretty important word. Just reading this language, one would
think Congress vested the awesome power of equitable relief in
pre-award contract cases with the judges of the Court of Federal
Claims and nowhere else.
Enter the legislative history. In discussing this section,
the House and senate Reports explain that exclusive doesn't mean
exclusive, but sort of exclusive:
^' 28 U.S.C. S 1491(a)(3) (1982)
281
page 3
ThiB enlarged authority [of the Court of Federal Claims! is
exclusive of the Board of Contract Appeals and not to the
exclusion of the district courts. 2/
Now. this presents a classic exanple of what, in my book, is
a misuse of legislative history. The Senate and Mouse Judiciary
Committees agreed on language that ~ apparently — did not re-
flect their intended purpose. Somehow they became aware of the
problem but, for unknown reasons, they chose to leave it in the
statute and issue a fix by way of legislative history. In such a
case, the legislative history does not merely cast light on the
statutory language; it recasts the language altogether.
A court faced with this situation is put in a difficult posi-
tion. Even among judges who rely on legislative history, statu-
tory language usually still comes first. Many are therefore re-
luctant to look past very clear statutory language to what may be
equally clear, but utterly contradictory, legislative reports.
Other courts take a more flexible view: They say that unambiguous
statutory language cannot be contradicted by legislative history,
but they look to the legislative history to see if the statute is
ambiguous. The kicker is they then use the same legislative his-
tory that created the ambiguity to resolve It. Go figure.
Predictably enough, the courts that have interpreted section
1491(a)(3) have split along these lines. The Fourth^^ and Ninth
2/
' H.R. Rep. No. 312, 97th Cong., 1st Sess. 43 (1981). See also
S. Rep. No. 27S, 97th Cong., 2d Sess. 23, reprinted in 1982 U.S.
Code Cong. & Admin. News 11, 33.
' Rex Systems. Inc. v. Holiday. 814 F.2d 994, 998 (4th Cir.
1987) .
282
page 4
Circuits, ' plus the Second ' and Federal Circuits*' by way of
dicta, have interpreted the language as giving exclusive jurisdic-
tion to the court of Federal Claims — that is, to the exclusion
of the district courts. The Third ' and First Circuits®' and the
9/
Claims Court itself ' have adhered to the legislative history and
given the CFC nonexclusive jurisdiction; the Sixth Circuit^*^' and
again the Federal Circuit ' have agreed in dicta.
The Judiciary Committees' attempt to preempt this confusion
by means of committee reports rather than statutory language just
hasn't worked and has had several unfortunate consequences:
1. It has created a split among the federal circuits that
will eventually have to be corrected by the Supreme Court or Con-
gress .
4/
' J. P. Francis t, Assoc, v. United States. 902 F.2d 740, 741-42
(9th Cir. 1990) .
' B.K. Instrument. Inc. v. United States. 715 F,2d 713, 721-22
(2d Cir. 1983) .
' F. Alderete Gen. Contractors. Inc. v. United States. 715 F.2d
1476, 1478 (Fed. Cir. 1983).
' Coco Bros. V. Pierce, 741 F.2d 675, 678-79 (3d Cir. 1984).
274. 275 (1985)
^°' Diebold V. United States. 947 P. 2d 787, 805-06 (6th Cir.
1991) .
' United States v. John C. Grimberg Co. . Inc. . 702 F.2d 1362,
1374-76 (Fed. Cir. 1983) .
283
page 5
2. It has caused long-tern uncertainty in the law, which in
turn wastes time, money, lots of paper and other judicial re-
sources. By ay count there have now been at least twenty pub-
lished opinions in the federal courts wrestling with this prob-
le«."/
3. There has been shift of authority away fro» Congress and
toward the federal courts. When Congress speeUts with a clear,
purposeful voice, judges seldoa Ignore it, no matter how much they
may disagree with the result (barring unconstitutionality, of
course) . The more wavering the voice of Congress — as when there
is a square conflict between text and legislative history — the
more likely it is that policy preferences of the individual judges
will prevail.
4. The confusion surrounding 1491(a)(3) may have legiti-
mized, to some extent, a fuzzy reading of other portions of the
same statute. "Look," a judge might say, "it's clear from section
12/
Diebold. 947 F.2d at 805-06; Cubic Corp. v. Cheney . 914 F.2d
1501, 1503 (D.C. Cir. 1990); J. P. Francis & Assoc. 902 F.2d at
741-42; Price v. United States Gen. Serv. Admin.. 894 F.2d 323,
324 (9th Cir. 1990); Dlstein Maritime Ltd.. 833 F.2d at 1058; Rex
Systems. Inc.. 814 F.2d at 998; In re Smith & Wesson. 757 F.2d at
435; Coco Bros. . 741 F.2d at 678-79; B.K. Instrument. Inc.. 715
P. 2d at 721-22; F. Alderete Gen. Contractors. Inc. . 715 F.2d at
1478; John C. Grimber? Co. . 702 F.2d at 1374-76; Alaska Airlines
V. Austin. 801 F. Supp. 760, 763 (D.D.C. 1992); North Shore Strap-
ping Co. V. United States. 788 F. Supp. 344, 345-47 (N.D. Ohio
1992); Neeb-Kearney t, Co. V. United States Dep't of Labor. 779 P.
Supp. 841, 844 (E.D. La. 1991) ; r'rimmof.pial Energies. Inc. v.
Cheney . 737 F. Supp. 78, 79-80 (D. Colo. 1990); Arrow Air. Inc. v.
United States. 649 F. Supp. 993, 997-98 (D.D.C. 1986); Caddell
Constr. Co. V. Lehman. 599 P. Supp. 1542, 1546 (S.D. Ga. 1985);
Rubber Millers. Inc. v. United States. 596 F. Supp. 210, 211
(D.D.C. 1984) ; ACME of Precision Surgical Co. v. Weinberger. 580
P. Supp. 490, 499-501 (E.D. Pa. 1984); Aero Corp. v. Dep't of the
Navy. 558 P. Supp. 404, 409-10 (D.D.C. 1983); National Steel &
Shipbuilding Co. . 8 Cl. Ct. at 275.
284
page 6
1491(a) (3) that Congress didn't mean everything it said in the
Federal Court Improvements Act of 1982, so I can be just a little
bit creative in interpreting other parts of the statute."
5- It promoted the view that legislative histories — par-
ticularly committee reports — deserve the same level of respect
as the statutes themselves. After all, here is a case where two
respected committees of Congress have gone about amending the
statute by saying so in the committee report.
Before I turn to my second illustration — involving a stat-
ute much different than 28 U.S.C. S 1491 — 1 want to say just a
few more words about committee reports. As everyone here is
aware, committee reports have long been treated by the judiciary
as the Rolls Royces of legislative history. Even curmudgeonly
judges like me will occasionally be caught sneaking a peek at a
committee report. More recently, though, the pedigree of commit-
tee reports has become suspect. I can do no better than to quote
from a speech given a couple of years ago by Professor Martin
Ginsburg to the Tax Section of the New York Bar Association. I
should note, for the record, that these are Professor Ginsburg 's
views alone, and should not be attributed to anyone else with the
same name:
It is no doubt appropriate to consult legislative his-
tory to grasp broad outlines of purpose, but everyone in this
room knows it is totally unreasonable to pretend that any of
the details that appear in a committee report ever came to
the attention of, much less were approved by, any elected
body.
The strange notion that the Joint Committee Staff
bluebook, published some months after the tax bill is en-
acted, merits the status of legislative history, can only
285
pag* 7
derive from a cynical recognition that, after all, the cob-
nlttee reports are written by staff and never read or ap-
proved b^^aenbera of Congress, so how's the bluebook any dlf-
Now let ne turn to what I see as the second, and more seri-
ous, problem: The case where legislators — well aware that
statutes will be Interpreted by judges in light of their legisla-
tive histories — purposely leave the statutory language vague and
then take every opportunity to salt the legislative record with
bints, clues, nudges and shoves, all intended to influence later
judicial interpretations of the statute. in a concurring opinion
in 1987, I wrote the following passage, which I believe expresses
the moral hazard Involved here; "The propensity of judges to look
past the statutory language is well known to legislators. It cre-
ates strong incentives for manipulating legislative history to
achieve through the courts results not achievable during the en-
actment process. The potential for abuse is great. "^*^
While this manipulation has generally been subtle, it struck
with a vengeance during the enactment of the civil Rights Act of
1991. Given its wide recognition, I need not detail the crafty
lobbying and procedural maneuvering involved not in drafting the
language of this historic statute, but in planting legislative
' Martin D. Ginsburg, Luncheon Speech at Annual Meeting of New
York Bar Association Tax Section (Jan. 24, 1991), at a (attached).
"/ Wallace v. Christensen. 802 r.2d 1539, 1559 (9th Cir. 1986).
286
page 8
hlatory land mines designed to explode witih full-fledged ration-
ales and interpretive methods, if stepped on by a black robe.^^^
what I do want to discuss, briefly, are the inpllcations of
tbis development. Here i must give credit to an excellent piece,
authored by Harvard student Hark Pllip, titled Why Learned Hand
Would Never Consult Legislative Hiatory Today. ^^^ The central
thesis of Filip's piece — a thesis 1 wish to endorse — is that
whatever one's initial view of legislative history as an aid to
interpretation, that value is destroyed once the participants in
the legislative process become aware that it will be used by
judges as an aid to — sometimes as a substitute for — interpre-
tation. Legislative history, if it is to be of any help at all,
must provide the type of background information that is descrip-
tive, that helps the judge step into the shoes of the legislator.
It cannot — should not — provide answers to specific questions.
Once legislative history becomes simply another field of skirmish
for the political process, it ceases to serve any legitimate pur-
pose. The statutory war is then won not by those who garnered the
most votes, but by those who outmaneuvered their colleagues in
fortifying the legislative record.
This process diminishes the power of Congress in relation to
that of the Executive and the courts. The Executive branch, as
its name suggests, has only the power to execute the laws; its
range of discretion involved is inversely proportionate to the
' See, e.g.. Robert Pear, With Rights Act Comes Fight to
Clarifv Congress's Intent. N.Y. Times, Nov. 18, 1991, at Al.
*■*' 105 Harv. L. Rev. 1005 (1992) .
287
page 9
Btatuta'8 precision, so, too, the courts, who have auch broader
leeway in interpreting statutes when they era vague and fuzzy.
The sore legitimate options Congress leaves to the courts and to
the executive, the less likely it is that the outcome will reflect
the will of Congress.
If this process continues, it will dramatically and detrimen-
tally affect the delicate balance of power among the branches of
our government, leaving Congress the weakest of the three. To
anyone who believes — as I do — that the public interest Is best
served by three strong bodies that can provide checks on each
other, this Is unwelcome news indeed.
Thank you.
288
NYSBA TAX SECTION
Annual Meeting Luncheon
Thursday. January 24. 1991
LUNCHEON SPEECH
Martin D. Glnsburg
I live In fear that someone In Arthur's spot, some day. 1s going to
announce that I need no introduction, sit down, and give me no
introduction. Whereupon no one will have a clue who I am.
I was led to this thought earlier today when I ran Into one of the now
more senior partners in the Weil. Gotshal firm, along with one of the firm's
newer lawyers. I had practiced with the firm for some twenty years before
becoming a school teacher. The young lawyer was amazed to learn this. Hhen
I joined the firm back in the 1950s it had fewer than 20 lawyers. When I
left there were about 275 lawyers. My former partner proudly announced that
the firm now has some 575 lawyers, and cheerfully added that this enormous
growth. post-Ginsburg. showed how much I had held the firm back while I was
with it.
I was hurt and amazed to hear this view of my tenure. It is quite
wrong. I have not previously mentioned it In public, but the explanation of
the firm's enormous growth over the past twelve years is evident to me. and
I am sure it is evident to all of you. The Weil firm grew from 275 lawyers
to 575 lawyers, after I left, because It took 300 lawyers to replace me.
Over the 20 years I was at it, I thoroughly enjoyed practicing in New
York City as a tax lawyer. I owe a great debt of gratitude to the Internal
Revenue Code just a single provision of which, section 341 as it happens,
put both of my children through college and one of them through two graduate
schools. Indeed, taken as a whole the 1954 Code allowed me to take up a
luxurious early retirement, improve my cooking, tell students how it used to
be before General Utilities was killed in the Battle of Bull Run. and write
nasty letters to the Government for reproduction in Tax Notes.
It is not clear to me which of these activities led to my selection as
today's luncheon speaker. Nor, as a matter of fact, have I been able to
find anyone on the Executive Committee of the Tax Section who admits to
having voted me this honor. But a great honor I do account it. I am, to
the best of my knowledge, the first Tax Section Chairman ever promoted to
luncheon speaker. Carr Ferguson, when he took office as Assistant Attorney
General in the Tax Division of the Department of Justice, noted with great
pride that he was the first in that job who earlier had served as a line
attorney in the Tax Division. It Is hardly the same, but I do understand
his good feeling.
Nartin D. Ginsburg, 1991
289
School teachers, certainly those who teach In thp tav finin i.>.,_ , i
opportunity to teach In places^ther than Vheho:e law school 'aco^^^
years ago a sizable accounting firm - not one of the big eight noJ the
shrinking six but one of the next dozen with offices In 70 or so snTal er
f t elt'of ?hl*f r!' 'l *"''/ "^P°^**« *" ""'^"^^ «t the ann al ;;^
retreat of the firm's tax partners and senior tax managers. Three days In
MTn^f\°JJ^. *" ^"°""*\"t^ -- 99 is what I recall It turned out to be
- may not seem to you an exciting way to spend time, but It emerged so.
onfiJS! ^l!!^'^ clients In the main, are small to moderate size business
entitles, corporations and partnerships. The tax accountants In the main
Tnlluallr-j.'''''-'''''^^. professional, reasonably exp'er enced. d
intelligent. They were clearly quite good dealing with day to day operatlna
aood^d«H? °^.?%r'^^ ""^^""^ ^"*^ty- "o^t °^ themVre not quite ?
good dealing with the corporate reorganization provisions, the principal
D?ace !\oZ ATJT.\'.'' ^^^°' ''' reorganization rules have been ?i
Jv"d total failure Participants had accrued experience sufficient to
.ar^^ll '^4^o^'°P^"9 one of the hypothetical cases In the seminar I strayed to
section 338. ever so briefly, and that Is when things got Interesting. I
had not given an advance assignment under section 338 and so the students
brought with them only their background practice experience. In the
clrH«r°,V "™"e."ted that. In light of General UtintlP. repeal, unless a
section 338 election is In fact Intended, the practitioner ought not rely
upon the so-called affirmative action carryover basis election, but should
instead make an explicit "protective carryover election."
The response seemed to me somewhat doubting. Attempting to be clearer
I restated the position this way. If there has been a qualified stock
purchase of one corporation by another, and If a section 338 election would
be tax disadvantageous, and If you fall to instruct your client to file a
protective carryover election, the only Interesting question is whether you
have committed malpractice.
Never In my life have I said anything to attract so warm a response.
Consternation everywhere.
You see. the prior response of these 99 decently able tax accountants
,no«"°L''®^" "doubt." as I had thought. It turned out. in that summer of
1989. that only two of the 99 practitioners In the room had ever heard of
the "protective carryover election" that Is provided in the endless
temporary regulations under section 338.
For whose use and whose consumption are the tax rules written these
days?
Hould I have done better with a more sophisticated class of tax
practitioners, accountants or lawyers, from New York City? Sure. Or
6475g
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Chicago or Atlanta or Boston or maybe evet\ Washington. D.C.? Sure. But
their clients are not Inevitably the small, usually family owned,
corporations whose tax advisors were In the room with me that summer.
Suppose Instead of 99 accountants from 70 small cities, participating
In my seminar were 99 lawyers conducting a business oriented practice In
those cities? I suspect the number of the knowledgeable would have dropped
from 2 to 0. Outside the large metropolitan areas. In most of this country,
tax Is the accountants' domain and lawyers are not expected to enjoy an
Informed relationship with protective tax elections of any sort.
At the administrative level, and at the legislative level surely, the
tax process has thoroughly lost touch with sense and with reality.
Hould I have done better. In my summer sojourn, to deliver a subchapter
K seminar, perhaps "living and dying under the section 704(b) substantial
economic effect regulations" or perhaps "six different ways to exit the
partnership: the tax treatment of those who leave and those who remain"?
In fact. Gordon Henderson of this Tax Section and Jack Levin of Chicago
and I delivered exactly that "exiting the partnership" seminar to a rapt
audience of lawyers and ac-ountants. some 300 strong, in a warm climate
location this past October 31. October 31 is of course Halloween and that
turned out to be strikingly appropriate. In the seminar we pursued 7 very
simple example cases — in each there were never more than three partners
and never more than half-a-dozen assets in the partnership ~ and by varying
one term of the deal at a time ~ exit by substitution of a new partner,
exit by retirement, exit by departing this world ~ we produced a nightmare
of amazingly different tax consequences to everyone in sight.
In preparing the Halloween seminar Gordon and Jack and I had
anticipated a high level of audience hostility. It is after all an ancient
and honorable tradition that when bad news is delivered, you shoot the
messenger. But in truth there was no hostility at all, just some nods,
occasional smiles, notetaking once in a while.
It all became clear when we asked some questions and took a poll. Don
Lubick, testifying before the Hays & Means Committee a dozen years ago, was
absolutely right when he announced, "there are no collapsible corporations
in Buffalo!" He simply did not take that brilliant perception far enough.
In at least one warm climate, we learned, quite a number of Code provisions
and more than a few regulations have been declared inoperative by default.
Nullification, it seems, remains a viable political concept in America, if
only in the tax field.
How about the substantial economic effect regulations under section
704(b)? In particular, what about the regulations' firm contemplation that
the partnership agreement at all times will require proper maintenance of
capital accounts, liquidating distributions made in accordance with positive
capital account balances, and either deficit makeup or some other designated
mystery?
6475g
291
He received from our warm climate friends a variety of responses. None
was entirely satisfactory. All were Interesting. I group them for you.
The class A response — "What regulations are those?" Happily there
were only a few class A responses.
The class B response — Magic litany. "He always put those three
sentences In our partnership agreements, right at the beginning " There
were a lot of class B responses. On further Inquiry they broke down into
two very distinct subclasses.
The first subclass, B-1 If you like, marches to the tune of Regulations
Triumphant. These practitioners have convinced their clients that
arrangements among partners must conform to tax regulations. If the
partners, for business reasons however good, prefer a different arrangement,
tough luck. Perhaps because there are not that many supine clients, there
were not that many practitioners In subclass B-1.
Subclass B-2 had many members. Informed of the Treasury's magic rules
by the practitioner, the clients replied, "That's fine Sam, you put Into the
partnership agreement any damn fool thing you want, we know what our deal
Ifiaiiy 1s." Whether they wni still know later on, after the death of a
partner for example. Is another matter. Right now, 1n what Is no doubt
conceived to be a rational response to Irrational tax rules, these folk are
writing one agreement for the revenue agent, a different agreement for
themselves. It's like keeping two sets of books. We used to give that sort
of thing a nasty label .
Finally, there was a class C response. If the parties' negotiated deal
does not fit the Treasury's magic rules, the partnership agreement should
reflect the deal and not the magic rules. This seemed to us remarkably
sensible. Are you surprised to hear that there were very few class C
responses?
Last year's grand event In subchapter K, however, was neither the
partnership allocation regulations nor the supporting temporary regulations
under section 752 on partnership liabilities. But we are getting close.
The great event In 1990 was Gordon Henderson's brilliant simplification of
those section 752 regulations. It was, I thought then and still do. the
most promising document produced by the Tax Section during the year,
probably the decade. A convincing demonstration that the prolixity and
complexity of the "modern" tax regulation can be substantially reduced at an
affordable cost In coverage and detail.
Has Henderson's effort greeted with the universal enthusiasm It
deserved? Of course not. After all. If you are Institutionally In the
business of writing endless Impenetrable regulations, how likely are you to
applaud engllsh?
6475g
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- 5 -
You will think that not fair conment, and likely you are right. But I
remind you that a principal objection to Henderson's sllmned-down basic
principles was this. After reading Henderson's regulation, goes the
objection, you would not understand the partnership liability rules nearly
as well as you do had you not first studied and mastered the Treasury's
awesome. Intricate, technical, endlessly dull temporary regulation.
Hhat amazes me about this argument — and the argument really Is
advanced, I have not made It up — Is the astonishing assumption that
underlies It.
The unstated assumption Is that when Treasury produces one of Its dense
endless masterpieces, practitioners the country over race to read and
reread, and after a while all those practitioners understand these full
blown regulations and can and do properly apply them In practice.
But that of course Is nonsense. The section 338 temporary regulations,
to take a fair example not exactly at random, surely qualify as a triumph of
endless exposition, but I know of a certainty that, In the summer of 1989,
In one firm 97 out of 99 tax accountants did not understand those
regulations.
In truth, the pattern of comprehension seems to me no better than a
sensible pessimist would anticipate. The average practitioner in the tax
field has a good grasp of some regulations, usually material of a certain
antiquity and obvious relevance to her practice; an uncertain grasp of a
fair number of other regulations; and anything from a nodding acquaintance
to no acquaintance at all with the rest. I am suggesting that the average
tax practitioner, hard-working but drowning In detail and watching the flood
rise, has never read many of the Treasury's regulations and never will, and
has not adequately understood a goodly part of the regulations that have
been read.
The Issue Is not whether a practitioner would be better off mastering
the Treasury's detailed section 752 temporary regulations or would be better
off mastering Henderson's abridgement. That is not the choice. In the real
world, I suggest, when the Treasury publishes one of its "modern"
regulations, for many and probably most, it Is Henderson or nothing.
To be fair, the Service and Treasury did publish during the past couple
of years some regulations that everyone could understand. Most recently,
the proposed one-class-of-stock subchapter S regulations.
The carefully Implemented purpose of these proposed regulations, as I
had occasion to suggest earlier this month in an Intemperate submission to
the Service, "is to make it as difficult as possible for ordinary taxpayers
to make use of subchapter S and to disqualify retroactively as many S
corporations as possible."
M7S9
293
4.K» «e tell you why I wrote that angry letter fully two Months after
the proposed regulations were published. I wrote an anjry letter because
you didn't By -you" I do not refer only to this Tax Section I Lean "hat
over a period of .ore than eight weeks, while dozens of submissions we?e
filed and everyone was negative, submissions on behalf of clients narrSwW
focused on the client's specific concern, and submissions by prof "I'Snaf
groups were the usual technician's triumph, picking Issues and p!oS"g
lapidary solutions not merely tree by tree but leaf by leaf.
nf ■«h°'"„1!!m*''*, *"" ^U" ^"*"- "^''*''* *** * forest out there, and a bunch
of mad people in your Government. In furtherance of no conceivable policy
was proposing to burn It down. P""ty.
The sensible response to arson 1$ not to file a report with the
arsonist addressing the technical merits of alternative fuels. Hhen there
is good reason to be angry, then be angry and be vocal about It. A careful
technical report s no help. If anything It misleads those people In
Washington Into believing that a little cutting and stitching will effect a
cure, when in fact the need Is for a heart transplant.
One of the valued members of this Section's Executive Coamlttee for
many years was Cliff Porter^ a wonderful tax lawyer and a wonderful person
At Executive Coflmittee meetings Cliff would Identify the case, fortunately
rare, in which a member seemed to be promoting a narrow client Interest
rather than a broad public Interest. Cliff would rise, shame those who
deserved It. and remind the rest of us why we were there. Invariably our
reports were much the better for this.
I suggest the Executive Committee of the 1990s ought to Include at
least one member whose job it Is to rise up and get angry when anger, and
not lawyer-like reticence. Is called for. Our reports will be much the
better for this.
If one is going to be perverse and critical, one ought not disregard
very long the legislative product and process.
This afternoon I propose to begin, not with the statute but with
committee reports. This seems proper since it has been said, probably not
In jest, that in the tax field today one consults the statute only if the
committee report is unclear. And that is the very problem I wish to focus.
Half-a-dozen years ago Justice Scalia. then Judge Scalla in the D.C.
Circuit, wrote a concurring opinion to disassociate himself from the
majority's reliance on legislative history. Scalia was concerned that
"routine deference to the detail of committee reports, and the predictable
expansion of that detail which routine deference has produced, are
converting a system of judicial construction into a system of
committee-staff prescription."
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The case In which Scalia wrote was not a tax case, but he buttressed
his concurrence with the lengthy footnote froM which I an about to quote:
Several years ago. the following Illuminating
exchange occurred between aeabers of the Senate, In
the course of floor debate on a tax bill:
MR. ARMSTRONG (the Senator froa Colorado). My
question, which may take the chairman of the Finance
Conmlttee by surprise. Is this: Is It the Intention
of the chairman that the Internal Revenue Service and
the Tax Court and other courts take guidance as to
the Intention of Congress from the Committee Report
which accompanies this bill?
MR. DOLE (the then chairman of the Finance
Conmlttee). I would certainly hope so.
MR. ARMSTRONG. Mr. President, will the Senator tell
me whether or not he wrote the committee report?
MR. DOLE. Did I write the committee report?
MR. ARMSTRONG. Yes.
MR. DOLE. No; the Senator from Kansas did not write
the committee report.
MR. ARMSTRONG. Did my Senator write the committee
report?
MR. DOLE. I have to check.
MR. ARMSTRONG. Does the Senator iJiSM of any Senator
who wrote the committee report?
MR. DOLE. I might be able to Identify one. but I
would have to search.
MR. ARMSTRONG. Mr. President, has the Senator from
Kansas, the chairman of the Finance Committee, mi
the committee report?
MR. DOLE. I am working on It. It Is not a
bestseller, but I am working on It.
MR. ARMSTRONG. Mr. President, did members of the
Finance Committee vote on the committee report?
MR. DOLE. No.
647Sfl
295
MR. ARMSTRONG. Mr. President, the reason I raise the
Issue Is not perhaps apparent on the surface, and let
me just state It. The report Itself Is not
considered by the Conmlttee on Finance. It was not
subject to amendment by the Committee on Finance. It
Is not subject to amendment now by the Senate.
If there were matter within this report which was
disagreed to by the Senator from Colorado or even by
a majority of all Senators, there would be no way for
us to change the report. I could not offer an
amendment tonight to amend the conmUtee report.
For any jurist, administrator, bureaucrat, tax
practitioner, or others who might chance upon the
written record of this proceeding, let me just make
the point that this Is not the law. It was not voted
on. It Is not subject to amendment, and we should
discipline ourselves to the task of expressing
congressional intent In the statute.
128 Cong. Rec. Sfl659 (Dally Ed. July 19. 1982).
Hirschev v. FERC. D.C. Cir. Nov. 15, 1985.
Good for Armstrong, who can have my vote any time, and good for Scalla
who never needed It.
It Is no doubt appropriate to consult legislative history to grasp
broad outlines of purpose, but everyone In this room knows it Is totally
unreasonable to pretend that any of the details that appear In a committee
report ever cane to the attention of. much less were approved by. any
elected body.
The strange notion that the Joint Committee Staff bluebook. published
some months after the tax bill Is enacted, merits the status of legislative
history, can only derive from a cynical recognition that, after all, the
committee reports are written by staff and never read or approved by members
of congress, so how's the bluebook any different?
Suppose the millennium arrives. Armstrong and Scalla carry the day.
Stripped of detail, committee reports now confirm only the congressional
purpose underlying the enactment. Would the tax system be better for It?
I do think so.
I suspect you nay think so too after you look again at some recent
committee reports, replete with announcements that "the committee Intends"
that the regulations, likely to emerge ten years hence, will reflect this or
that exquisite technicality ~ when you know perfectly well that the
Committee had no such thought In Its head. It Is yet another member of the
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Staff, one who knows right from wrong, leaving his (or her) mark on the
world. For some reason I recall the man who, desperate to have his name
remembered In history but blessed with no special merit or talent, went out
and burned the Parthenon.
If you are still with me you may be slightly puzzled. I began this
afternoon by bashing recent tax regulations and those who wrote them. Now I
complain of the congressional staffers who only want to guide those who must
write the regulations. Is It simply that I hate everyone?
At times, perhaps, but not here. The guidance Treasury needs from the
Hill Is not In the detail. It Is In a proper appreciation of the objective
Informing the legislation. Concentration on a host of secondary matters, on
notes but not music If you will, risks disregarding the statute's essential
purpose. The Service and Treasury are quite capable of committing that sin
without help — witness the recent one-class-of-stock subchapter S proposed
regulations.
I suppose the reason why I prefer to go with the Treasury, informed as
to policy and legislative purpose but not directed In a hundred details,
relates to accountability.
Everywhere you look, in Government and out, you will find good people
and arrogant people.
It is not that the arrogant people are "bad," as In "evil beings." It
is that they care too much about turf, position, sometimes authority, and
somehow have come to believe that, in this precise area of the tax law or
that one, they have cornered wisdom.
I have come to the conclusion, which I suspect is controversial, that
arrogant staffers writing regulations and other administrative ukase are a
serious concern, but arrogant staffers engaged in the formulation of tax
legislation and the writing of committee reports are a far more serious
concern. It has something to do with the frequency and success of repair.
Hhen you scream at the Service or the Treasury for having
self-generated a gross misfortune, they may hate you but there is a
reasonable chance someone with sense In higher authority sooner or later may
listen. Not always, unfortunately, but reasonably often.
Hhen you scream about a lunatic proposed or recent amendment to the
Code or an awful committee report directive, the chance that someone in high
authority — they are called "Senators" and "Representatives" on the
tax-writing committees ~ will listen Is rather remote. And if complaints
are heeded and action ultimately Is taken, the legislative correction 1s
likely to prove Incomplete at best.
Hithout taking time to detail a familiar story, I remind you of the
1984 revision of the tax treatment of divorce, sensible in the House and
64758
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sabbotaged In the Senate Finance Cwwlttee. and the 1986 legislative changes
that undid part but by no wans all of the damge.
Twenty years ago. In this Tax Section's Con>lex1ty Report, we concluded
that Congress should write purposive rather than Intensely precise tax
statutes, and the Service and Treasury, responsive to the congressional
purpose, should aanage the detail. Our reasons of twenty years ago were a
little different. They did not squarely reflect the perhaps controversial-
concern I have expressed — one bunch Is a problem but the other bunch Is
■ore of a problea — or reflect at all the "legislation by revenue estimate'
concern Arthur Mntloned earlier.
Whatever the reasons advanced In support of It. the proposal has not
changed. If. as Justice Frankfurter alaost said In Portland Oil, "wisdoa
should not be denigrated aerely because It coaes late, since It coaes so
seldoB." then surely wlsdoa that Is consistently advanced deserves, sooner
or later, a slightly aore positive response.
It was great of you to have ae for lunch. Thank you.
Mne
298
PREPARED STATEMENT OF
ROBERT A. KATZMANN
PRESIDENT. THE GOVERNANCE INSTITUTE,
WALSH PROFESSOR OF AMERICAN GOVERNMENT &
PROFESSOR OF LAW, GEORGETOWN UNIVERSITY. AND
VISITING FELLOW, THE BROOKINGS INSTITUTION
BEFORE THE JOINT COMMITTEE ON THE
ORGANIZATION OF CONGRESS,
June 29, 1993
I very much appreciate the oppoitunity given to the Governance Institute to assist the
Joint Committee on the Organization of Congress as it addresses the impoitant subject of
legislative-judicial branches. It has been an honor to work with you to help organize this
hearing, and we look forward to other such occasions. The mission of the Joint Committee holds
historic promise — to study fully the organization and operations of Congress, and to
recommend improvements "with a view toward strengthening the effectiveness of the Congress,
simplifying its operations, improving its relationships with and oversight of other branches of the
United States Government, and improving the orderly consideration of legislation." This concern
with relations with other branches importantly recognizes that the institutions of government
affect each other, and that the link between the courts and Congress, although not as well
understood as it might be. has an important impact on the legislative and judicial branches.
The subject of today's hearing, statutory interpretation and the uses of legislative history,
raises several questions: Why should Congress be concerned? What problems do courts face as
they seek to understand statutes? How can courts better understand the legislative process and
legislative history? How can Congress better signal its meaning? How can the judiciary make
the legislature aware of its decisions interpreting statutes? What kinds of institutional processes
and mechanisms can be devised in the pursuit of these objectives? In the time allotted, I want
to touch upon each of these questions, focusing on some practical efforts which might be taken
so that the First and Third Branches can better understand each other's problems and processes.
In so doing. I draw upon the Governance Institute's project — a project which began at the
invitation of Judge Frank M. Coffin, then chair of the U.S. Judicial Conference Committee on
the Judicial Branch. I am privileged to be joined here by Judge Wald. Judge Kozinski. and our
Governance Institute Distinguished Fellow Robert Kastenmeier, who have been such an important
part of our work.
The concerns of Congress
In recent years, Congress has come under scrutiny with regard to way it writes its law,
just as the courts have come under criticism with respect to the way they interpret those laws.
Some, such as Justice Scalia. have urged upon the courts a more restrictive interpretation of
legislative history. A number of institutions within the Congress and the judiciary, and
organizations concerned with the legal system, have been delving into the issue: for example,
leadership of both chambers of Congress; the Subcommittee on Courts. Intellectual Property and
299
the Administration of Justice of the House Judiciary Committee; the Federal Courts Study
Committee; the U.S. Judicial Conference Cbmmittee on the Judicial Branch; the D.C. Circuit
Judicial Conference; the Governance Institute; and the Brookings- AEI Report on the organization
of Congress (to which the Governance Institute contributed the sections on judicial-legislative
relations). The Congress-Court connection has received attention in such popular journals as
The Washington Post, The New York Times, Congressional Quarterly, and the National Journal
As Congressman Kastcnemeier has noted, what is at stake ultimately is the integrity of
the legislative and judicial processes. To the extent that courts have difficulty understanding the
legislative process which the they interpret, or Congress does not provide the courts with a clear
sense of its meaning, then both branches have a problem in need of further attention.
TTie Problems Courts Face
In this age of statutes, judicial interpretation of statutes has become for courts an
increasingly significant and time-consuming responsibility. As Judge Abncr Mikva has observed,
it has become as important to the legislative process — for what the courts decide has obvious
ramifications for Congress — as any single part of that process.
The Joint Committee has just heard from panel of judges and an honored former legislator
about the often complicated nature of the inquiry for a court which seeks to discern legislative
meaning. Congress enacts a law; the statute becomes the object of litigation. The court must
interpret the meaning of the words of the statute. Yet, the language is often unclear. As the
judiciary looks for guidance, it delves into the legislative history — the foundation on which
judges seek to interpret statutory meaning. In so doing, the court must determine in the first
instance what constitutes legislative history and how to weigh its various parts — such as
committee reports, conference committee reports, floor debates and votes. It may have to
penetrate layer upon layer of rules and procedures. At times, the legislative history is virtually
non-existent. In other situations, the legislative history is ambiguous. To be sure, in particular
cases Congress may deliberately not deal with difficult issues; but in other circumstances, the
legislature might very well have chosen to do so if it had been made aware of the problem.
Sometimes, the problem results not from legislative ambiguity but from silence: Congress has
not addressed the issue. The court is then asked to fill in the gaps, not only with respect to the
meaning of statutory language, but also with regard to a whole host of commonly overlooked
issues — for example, those bearing on preemption, attorney's fees, civil statutes of limitations,
constitutional severability provisions, private right of action, exhaustion of administrative
remedies, the nature of the administrative proceedings. The difficulty of discerning the legislative
will has increased as Congress has changed over the last several years: in some ways
fragmentation has increased, staffs have growoi substantially, subcommittees have proliferated,
and the opportunities for legislative entrepreneurship, in ways unobserved by the whole house,
have expanded as well.
What this all means is that when Congress, as a deliberative body, docs not give explicit
300
direction about its legislative meaning, it not only creates added burdens for the courts: it also
increases the risk that the judiciary, in the good-faith effort to make sense of the problems before
it, will interpret the statutes in ways that the legislature did not intend. That the myriad patterns
of relationships between the judiciary and Congress have important impacts on governmental
processes and policy suggest the peril of the present circumstance — that in the absence of
mutual understanding, the quality of governance will inevitably suffer. It is, of course, too much
to expect that institutions will act with perfect knowledge. Given the political and policy
complexities surrounding particular issues, it is unrealistic to believe that those institutions can
definitively address all the problems they face. But at the very least, each can strive to overcome
tensions which prevent one from accurately assessing the processes and outcomes of the other.
To be sure, what the role of the judiciary in reviewing legislation should be is in no small
measure dependent upon subjective perspectives about the proper allocation of responsibilities
among courts. Congress, and various parts of the administrative branch — about what tasks we
think each institutional process should assume. I have written elsewhere about these various
conceptions (Judges and Legislators: Toward Institutional Comity, pp. 15-20), some of which
our other panelists have presented. For present purposes, it is important to note that for all of
their differences, most of these various approaches share a concern with the process by which
Congress operates, indeed, with the ways in which the branches of government interact. Their
perspectives are based upon assumptions about how Congress functions, the factors affecting
legislative outcomes, and the ability of the judiciary to make sense of congressional intent. Thus
the proponents of these conceptions should to one degree or another share an objective of this
hearing today (and I might add of the Governance Institute project on judicial-congressional
relations) — that is, based upon an empirical examination of the way Congress works, to
ascertain how courts can better interpret statutory meaning, and to determine whether and how
Congress can clarify legislative history. Theories about how courts should interpret legislative
history can be advanced with greater confidence to the extent that they are informed by an
appreciation of the complex reality of the legislative process.
If the foregoing analysis is correct, then at bottom, we need to strive to find ways for
courts to better understand the legislative process and legislative history and for Congress to more
clearly signal its intent. We need to see if the system can be fine-tuned to promote informed
interaction between the branches. As Congressman Kastenmeier observed in the Report of the
Federal Courts Study Committee, "A radical restructuring of the relationship between the
branches is not necessary, but each branch should give priority to institutional reforms (page 92)."
For those engaged in governance — the practitioners in the judicial and legislative
branches — the matter of devising practical measures to reduce tensions and improve relations,
is of special importance. The problem has at least two dimensions: (1) the creation of a process
in which representatives of both branches, unaccustomed, indeed uncertain about the very
propriety of meeting, can examine critical questions; and (2) the identification of discrete issues,
susceptible of resolution. What is required is an agenda which links conceptual ideas with
301
pragmatic solutions. The agenda should be faithful to constitutional nonns and societal values
and respectful of the institutional prerogatives and nonns that underlie relationships among th^
branches. Moreover, whatever proposals for improvements are advanced should be evaluated as
to their feasibility — indeed, not only where they can be achieved, but also at what costs, if any.
Required, in essence, is a weighing of advantages and disadvantages, judged in terms of
noimative views about the way our system should work.
The Need for a Practical Approach
That brings me to the work of the Governance Institute, a not-for-profit organization,
incorporated in 1986, concerned with exploring, explaining, and casing problems associated with
both the separation and division of powers in a democratic polity. Our focus is on institutional
process, a nexus linking law, institutions and policy. Our objective is concrete and pragmatic:
how to refine the functioning and interaction of institutions to enable them to better address
specific problems. We strive not only for scholarly publications that will be read, but also for
ideas that will be to use. That is why we try to work with those decisionmakeix with
responsibilities for the institution or institutions involved, those who will have something to say
about what changes will be made.
In its first years, the Governance Institute has concentrated on the interaction between the
federal judiciary and the Congress. This work is rooted in the premise that these two branches
of government need to better appreciate each other's processes and problems if they arc to
overcome unnecessary friction — friction which impedes the most effective functioning of both
and policymaking more generally. The project began, as I noted earlier, at the invitation of the
U.S. Judicial Conference Committee on the Judicial Branch, chaired by Judge Frank M. Coffin
of the U.S. Court of Appeals for the First Circuit. Upon his appointment as chair of the
Committee on the Judicial Branch, Judge Coffin proposed that its focus should include, in
addition to its traditional concerns, a long-range program devoted to increased understanding of
an respect for the judiciary. At the core of such an agenda would be an examination of past,
present, and future relations between Congress and the judiciary. The judiciary could not hope
to strengthen its well-being without congressional support — and that depended upon a mutual
appreciation of each branch's responsibilities, processes and problems. With the backing of then
Chief Justice Warren Burger, and the approval of his committee. Judge Coffin moved to launch
an inquiry.
The project has sounded the basic themes and methods of the Governance Institute:
responding to the needs of institutions — in this case, the U.S. Judicial Conference Committee
on the Judicial Branch and selected legislators; creating with a planning committee a process for
considering relevant questions, commissioning papers from an interdisciplinary group of
historians, political scientists, lawyers, judges, legislators, and legislative staffers; holding an all-
day colloquium at the Brookings Institution to sharpen our agenda; publishing the proceedings
in Judges and Legislators: Toward Institutional Comity; and, having identified several smaller
parts of the problem, establishing working groups and experimental pilot projects, to assess
302
practical proposals.
The workshop and pilot project phase now underway consists of three components: (1)
the delineation of the kinds of ground rules, protocols, and factors to be considered for different
kinds of communications between the branches; (2) examination of how courts can better
understand the legislative process and legislative history, how Congress can better signal its
meaning (for instance, in the drafting of legislation, and consideration of committee reports) and
how the judiciary can make the legislature aware of its decisions interpreting statutes; and (3)
exploration of the institutional processes and mechanisms that can be devised to improve relations
between the branches.
Ways to Improve Understanding of the Legislative Process and legislative History
The second component of our work — the current phase of the Governance Institute
project — is the subject of today's hearing.
As we think about the issues confronting us, we could spend some time pondering what
can be done about the legislative fragmentation, the conflicts among committees, the difficulties
in making trade-offs, and the problems of deliberation in Congress — all of which contribute to
the courts' difficulties in understanding the legislative process. But there may be more immediate
steps that could be taken to clarify statutory meaning and legislative history involving the related
matters of statutory drafting, interpretation and revision. Clarifying statutory meaning, according
to the approach which we have taken, has at least three parts. The first is in some sense
preventive; that is, it seeks to anticipate potential difficulties, and to deal with them before a bill
becomes a law. As such, it goes to the heart of the drafting process. The second element
focuses on the materials that constitute legislative history and is geared towards finding ways for
Congress to signal more clearly its meaning. And the third part entails developing routinized
means so that, after the enactment of legislation, courts which have experience with particular
statutes, can transmit their opinions to Congress, identifying problems for possible legislative
consideration.
(1) Diafiing. With respect to diafiing, it would be useful to determine if some way could
be found to subject such activity to some central scrutiny applying accepted standards as there
is in some states. The House of Representatives and the Senate have offices of legislative
counsel, trained in the nuances of drafting. As we noted in Judges and legislators (pages 183-
84), might a checklist of common problems be prepared for the benefit of those in Congress who
do not use the professional drafting services, which could reduce judicial burdens and at the same
time give clearer direction as to legislative intent. Such a checklist would focus the legislators'
attention on such matters as constitutional severability, civil statute of limitations, attorney's fees,
private right of action, preemption, exhaustion of administrative remedies. These issues, when
they are not explicitly addressed in the legislation itself, are often left ultimately to the courts for
resolution. To improve drafting, periodic seminars involving legislative counsel and judges could
be useful. The Governance Institute is engaging in efforts to improve such exercises.
303
I note that both the Federal Courts Study Committee and the Committee on Second
Circuit Courts of the Federal Bar Council have endorsed the idea of a checklist. I quite agree
with Congressman Kastenemeier's observation in the Federal Courts Study Committee report that
such a checklist cannot by itself do justice to the complexity of the legislative process. But I
believe that it can stimulate much needed thinking.
(2) Legislative History. With regard to legislative history, attention should be paid to the
ways in which legislative signals of intent could be made clearer. Deserving scrutiny is the
question of whether the most important and agreed-upon background and purposes of the
legislation can be more sharply identified.
Consider the significance to be attached to conunittee reports. Assuming they are to be
given weight as courts seek to understand statutory meaning — attention should be paid to devices
that make it more likely that committee reports receive positive congressional assent. Are there
ways to distinguish between those parts of committee reports that receive such affirmative
approval and those that do not? As Professor Stephen Ross as noted, it would be desirable if
committee members signed committee reports. At present, only the chairman and those
presenting additional views sign the reports, leading to the charge that they may lack majority
support.
As legislation nears passage, the floor managers of legislation should strive to reach some
agreement as to what constitutes authoritative legislative history. Thus, they would reach some
shared understanding as to which floor statements and colloquies should be given weight and
indicate that such material by express arrangement is meant to be part of the authoritative
legislative history.
Relatcdly, with regard to the Congressional Record, means should be devised so that
judges can have a better sense of how to weigh statements, speeches and colloquies. As to
colloquies, I point to Joan Biskupic's account in a Congressional Quarterly piece of floor
statements regarding the effort to repeal the McCarran- Walter Act of 1952, as to its sections
denying visas to people to enter the United States on grounds of ideology. Representatives
Kasteiuneier and Berman took to the House floor to say that the proposed provision would
supersede the relevant portions of the 'S2 act. Later, Senators Helms and Simpson said on the
floor that they did not believe the provision superseded the '52 Act. The next day, Senator
Moynihan responded that "As the author of the provision, I rise to state the contrary." The bill
passed, 98-0. President Bush released a statement asserting that he did not believe the provision
changed current law. At some point, it is not unlikely that a court will be asked to make sense
of all this.
Arc there ways, as former judge and Solicitor General Kenneth Starr queried, for Congress
to instruct the courts with respect to the degree of deference it should give to its delegate, the
administrative agency?
304
Congressional concern with making legislative history more authnritafive will also aid
courts as thev weiph amicus briefs of legislator seeking to influence the judiciary's view ahout
legislative intent. At times, legislative, who have failed to secure their objectives in the
congressional arena, try to secure their ends through the judiciary. To the extent that legislative
materials become more authoritative, courts will be better able to evaluate amicus briefs and
ascertain congressional meaning.
(3) Statutory Revision. As Congress revises statutes, it might draw upon the experience
of courts charged with interpreting its laws.
Although the courts and Congress affect each other in many ways, uncertainty about the
propriety of various kinds of communications inhibit useful input. For example, when a
committee of Congress is considering revising a complex piece of legislation, it might be useful
for judges experienced in interpreting the statutes to testify as to the technical difficulties in
discerning congressional meaning. As chair of the Subcommittee on Courts, Congressman
Kastenmeier would from time to time draw upon such expertise. But generally. Congress does
not avail itself of this opportunity, largely because of the uncertainty of judges and legislators
about such communication. Accordingly, the development and refinement of protocols of
communications between judges and legislators as to statutory revision would be helpful.
Moreover, it would be useful to examine the states' experiences with law revision
commissions that provide for the orderly evaluation of statutes, bringing together representative.^
of all thxee branches (Justice Shirley Abrahamson of the Wisconsin Supreme Court and retired
Justice Hans Linde of the Oregon Supreme Court have done work in this area). Meriting
continuing examination as well is Judge Coffin's suggestion made some years ago that judicial
criticisms be collected from opinions and rulings and presented for congressional examination.
Along the same lines, I would point to the writings of Judge Ruth Bader Ginsburg in volume 100
of the Harvard Law Review, and the remarks of Justice John Paul Stevens before the American
Law Institute.. It would also be worthwhile to identify conflicts among the circuits with respect
to legislative meaning, which Congress could resolve, as Justice Stevens and Judge Wilfred
Feinberg have recommended.
A practical component of this effort to make the process of statutory revision more
rational is a pilot project, which the Governance Institute began at the invitation of the judges
of the U.S. Court of Appeals for the D.C. Circuit ~ due, I think, to the special interest of then
Chief Judge Wald, Judge James L. Buckley, Judge Ruth Bader Ginsburg, and current Chief Judge
Abner J. Mikva. In that work, we are helping design a system of collecting, sorting, and
circulating statutory opinions of the that court to relevant congressional committees for legislative
consideration. In the effort to help close the gap between those who produce legislative history
and those who digest it, we conducted a study in which we attempted to determine how judicial
decisions identifying problems in legislation are examined by Congress (see "Bridging the
Statutory Gulf Between Courts and Congress, 80 Georgetown Law Journal 653 (1992), and 124
Federal Rules Decisions 312-35 (1989) ). We selected 15 cases, suggested by the judges of the
D.C. Circuit. Some problems involved questions of grammar, such as misplaced commas and
305
8
ambiguous adjectives. Other laws had technical gaps, such as failing to state which courts bad
jurisdiction over cases that could be brought under the sututes. In still other cases, the courts
explicitly invited congressional action to dear up ambiguities.
We found that Congress was nevertheless unlikely to clarify these cases because it was
unaware that the problems existed. In 12 of these cases, the responsible congressional
committees did not know these court decisions. Staffs, I found, lend generally to be aware of
major cases, or those in which a losing part seeks some sort of legislative relief. We also found
anecdotal evidence suggesting that the judiciary may not know of activities on the congressional
side which have bearing on the court's wmk.
In the course of interviews, it became clear that both branches believed that some means -
- a transmission belt — should be developed to transmit relevant judicial opinions to Congress.
The task, it seemed to us, was to create a low-visibility mechanism, preferably without
the need for a new committee or structure within Congress, which would directly transmit
opinions or suggestions to Congress. Working with the D.C. Circuit, the Governance Institute
is attempting to design such a mechanism. We hope to create a mechanism which: (1) is
req>ectful of the institutional prerogatives of each branch, that is, a mechanism which does not
raise concerns in either branch about its prt^riety; (2) does not burden either branch; (3) is sound
technically; and (4) contributes to informed decisioimiaking by the judiciary and Congress. To
secure a sense about manageability, the Governance Institute has for the few years been
monitoring relevant statutory decisions of the D.C. Circuit. Each month we have received
opinions from the staff attorneys office of the D.C. Circuit. Having determined that the nimibers
of opinions would not burden the institutions within Congress which would have to digest them,
Robert Kasteimeier, Judge Coffin and I, in consultation with Chief Judge Mikva, then proceeded
to our next step — to work out an arrangement with the House of Representatives and the Senate
whereby some ofHce would receive the opinions and transmit them to the relevant committees.
We did so after many discussions on the Hill, with the special support of the Legislative
Counsel of the House and the Senate and the Legal Cbunsel of the Senate. I am pleased to
report that the bipartisan leadership of each branch — Speaker Foley, House Majority Leader
Gephardt, House Minority Leader Michel, Senate Majority Leader Mitchell, Senate Pro Tem
Robert Byrd and Senate Minwity Leader Dole — laundied the experiment in 1992 (see enclosed
memoranda).
In their memorandum of May 22, 1992, Speaker Thomas S. Foley, Majority Leader
Robert Michel and Republican Leader Robert Michel indicate that they "believe that the program
would be most useful if it were applied to all circuits.* Scnalws Mitchell, Byrd, and Dole state
that 'this project offers great promise as a thoughtful and productive step in improving
comrounic^ions between the judiciary and the Congress to the benefit of both branches.' They
note that the 'hope is that the identification and transmittal of such opinions to the appropriate
congressional committees will furnish information helpful to Cbngress's efforts to improve its
communication of legislative intent in statutory drafting.* For his part, Chief Justice William H.
Rehnquist, in the '1992 Year-End Report of the Federal Judiciary' pointed to the Governance
306
Cnngressional concern with making legislative history more authoritative will also aid
courts as thay weigh amicus briefs of legislators seeking to influence the judiciarv's view about
legislative intent. At times, legislative, who have failed to secure their objectives in the
congressional arena, try to secure their ends through the judiciary. To the extent that legislative
materials become more authoritative, courts will be better able to evaluate amicus briefs and
ascertain congressional meaning.
(3) Statutory Revision. As Congress revises statutes, it might draw upon the experience
of courts charged with interpreting its laws.
Although the courts and Congress affect each other in many ways, uncertainty about the
propriety of various kinds of communications inhibit useful input. For example, when a
committee of Congress is considering revising a complex piece of legislation, it might be useful
for judges experienced in interpreting the statutes to testify as to the technical difficulties in
discerning congressional meaning. As chair of the Subcommittee on Courts, Congressman
Kastenmeier would from time to time draw upon such expertise. But generally, Congress does
not avail itself of this opportunity, largely because of the uncertainty of judges and legislators
about such communication. Accordingly, the development and refinement of protocols of
communications between judges and legislators as to statutory revision would be helpful.
Moreover, it would be useful to examine the states' experiences with law revision
commissions that provide for the orderly evaluation of statutes, bringing together representatives
of all three branches (Justice Shirley Abrahamson of the Wisconsin Supreme Court and retired
Justice Hans linde of the Oregon Supreme Court have done work in this area). Meriting
continuing examination as well is Judge Coffln's suggestion made some years ago that judicial
criticisms be collected from opinions and rulings and presented for congressional examination.
Along the same lines, I would point to the writings of Judge Ruth Bader Ginsburg in volume 100
of the Harvard Law Review, and the remarks of Justice John Paul Stevens before the American
Law Institute.. It would also be worthwhile to identify conflicts among the circuits with respect
to legislative meaning, which Congress could resolve, as Justice Stevens and Judge Wilfred
Feinberg have reconmiended.
A practical component of this effort to make the process of stattitory revision more
rational is a pilot project, which the Governance Institute began at the invitation of the judges
of the U.S. Court of Appeals for the D.C. Circuit — due, I think, to the special interest of then
Chief Judge Wald, Judge James L. Buckley, Judge Ruth Bader Ginsburg, and current Chief Judge
Abner J. Mikva. In that work, we are helping design a system of collecting, sorting, and
circulating statutory opinions of the that court to relevant congressional committees for legislative
consideration. In the effort to help close the gap between those who produce legislative history
and those who digest it, we conducted a study in which we attempted to determine how judicial
decisions identifying problems in legislation arc examined by Congress (see "Bridging the
Stattitory Gulf Between Courts and Congress, 80 Georgetown I .aw Journal 653 (1992), and 124
Federal Rules Decisions 312-35 (1989) ). We selected 15 cases, suggested by the judges of the
D.C. Circuit. Some problems involved questions of grammar, such as misplaced commas and
307
8
ambiguous adjectives. Other laws had technical gaps, such as failing to state which courts had
jurisdiction over cases that could be brought under the statutes. In still other cases, the courts
explicitly invited congressional action to clear up ambiguities.
We found that Congress was nevertheless unlikely to clarify these cases because it was
unaware that the problems existed. In 12 of these cases, the responsible congressional
committees did not know these court decisions. Staffs, I found, tend generally to be aware of
major cases, or those in which a losing part seeks some sort of legislative relief. We also found
anecdotal evidence suggesting that the judiciary may not know of activities on the congressional
side which have bearing on the court's work.
In the course of interviews, it became clear that both branches believed that some means -
- a transmission belt — should be developed to transmit relevant judicial opinions to Congress.
The task, it seemed to us, was to create a low-visibility mechanism, preferably without
the need for a new committee or structure within Congress, which would directly transmit
opinions or suggestions to Congress. Working with the D.C. Circuit, the Governance Institute
is attempting to design such a mechanism. We hope to create a mechanism which: (1) is
respectful of the institutional prerogatives of each branch, that is, a mechanism which does not
raise concerns in either branch about its propriety; (2) does not burden either branch; (3) is sound
technically; and (4) contributes to informed decisionmaking by the judiciary and Congress. To
secure a sense about manageability, the Governance Institute has for the few years been
monitoring relevant statutory decisions of the D.C. Circuit. Each month we have received
opinions from the staff attorneys office of the D.C. Circuit. Having determined that the numbers
of opinions would not burden the institutions within Congress which would have to digest them,
Robert Kastemneier, Judge Coffin and I, in consultation with Chief Judge Mikva, then proceeded
to our next step — to work out an arrangement with the House of Representatives and the Senate
whereby some office would receive the opinions and transmit them to the relevant conmiittees.
We did so after many discussions on the Hill, with the special support of the Legislative
Counsel of the House and the Senate and the Legal Counsel of the Senate. I am pleased to
report that the bipartisan leadership of each branch — Speaker Foley, House Majority Leader
Gephardt, House Minority Leader Michel, Senate Majority Leader Mitchell, Senate Pro Tem
Robert Byrd and Senate Minority Leader Dole — launched the experiment in 1992 (sec enclosed
memoranda).
In their memorandum of May 22, 1992, Speaker Thomas S. Foley, Majority Leader
Robert Michel and Republican Leader Robert Michel indicate that they "believe that the program
would be most useful if it were applied to all circuits.' Senators Mitchell, Byrd, and Dole state
that "this project offers great promise as a thoughtful and productive step in improving
conununications between the judiciary and the Congress to the benefit of both branches." They
note that the "hope is that the identification and transmittal of such opinions to the appropriate
congressional committees will furnish information helpful to Congress's efforts to improve its
communication of legislative intent in statutory drafting." For his part. Chief Justice William H.
Rchnquist, in the "1992 Year-End Report of the Federal Judiciary" pointed to the Governance
308
Institute project as an effort to improve relations between the branches by making "it easier for
judges to alert legislators to statutory drafting problems identified in the course of adjudication."
Other circuits — the First, Third, Seventh, and Tenth — have joined this initiative, with others
expected to become a part as well. The U.S. Judicial Confeence Committee on the Judicial
Branch, chaired by Judge Deanell Tacha, is monitoring our efforts.
With the system in place, Congress will have a better sense of judiciary's work. To the
extent that Congress can resolve problems in statutes identified by the courts, not only will the
legislature's intent be better served, but also the judicial caseload may be somewhat reduced.
Moreover, we will have a better sense of congressional views about judicial interpretation of
statutes since we will try to monitor such reaction. The Governance Institute will analyze the
data from both the judiciary and Congress, and hold seminars involving all those who work with
statutes. The objective would be to upgrade the drafting, interpretation and revision of statutes.
Conclusion
The problems we examine today are longstanding, and no one should have any illusions
about the ease with which they can be addressed. Some issues may be intractable. The
legislative process will always be complicated; there will always be political dynamics which
drive the process so that many statutes will be deliberately ambiguous — that is the price for
securing a majority coalition.
But at the very least, heightened understanding should benefit each branch, and
policymaking too. I share Congressman Kastenmeier's view that "communications arc a two-way
street with messages flowing both ways. Each end of the process needs improvement" (Eeskol
Courts Study Committee Report, page 92). If we are to chip away at the various problems of
judicial-congressional relations, then we have foster processes by which both branches can
communicate with each other. That at least is the hope of the Governance Institute. Having
identified and broken the problem into several smaller parts, we hope to continue to develop
concrete proposals, assemble a small but representative group of judges, legislators, and other
interested persons, to reflect upon the proposals, make recommendations of the actions deemed
most useful, and undertake more experimental programs. All this is to say that we would be
pleased to assist this Joint Committee in the months ahead and the Congress in the years ahead
in ways deemed appropriate as you address the issues discussed today.
309
Congresiji of tf)e Wniteb 6tate«
IHutlJngtan. 3B.C. 2C515
Nay 21, 1993
D«ar Kr. Kttad«:
Wa write to inform you of tha inception of a pilot prolan to
tranaait to Congress opinions involving aattars of technical statutory
construction by U.S. Courts of Appeals.
Tha 0.8, Court of Appeals for the District of Coluabia Circuit and
the Governance Institute, a non-profit public policy organisation, have
jointly developed an ejcperimant to select, and provide to the House of
Representatives without co]B«ent, published opinions of that Circuit
which have to do with technical issues such as grannatioal errors,
textual aubiguities or drafting nlatakes. Opinions would be selected by
the Chief Staff Counsel of the Court pursuant to the attached
guidelines. They would be sent to the bipartisan leadership, chairaan
and ranking ainority neabers of key ooaaittees, the Parliaaentarian, the
Legislative Counsel and the General Counsel to the House, all of- whoa
would be free to transait thaa to other Meabars and staff.
At first, this process would involve just the Court of Appeals for
the District of Coluabia Circuit and the Rouse of Sepraaentat ives .
Efforts will be aada shortly to involve the Senate as well. The
Judicial Conference of the United States has also agreed to study and
review the pilot project with an eye towards Its possible extension to
all the U.S. Circuit Courts.
We welcoae this Court's experiaantal Initiative, which is to begin
this week. Wa believe that the prograa would be aoat useful if it were
applied to all circuits and both houses of Congress. In either ease, we
anticipate that the nuabers of opinions transmitted to Congress will be
aodest .
Your conaents on the application of this concept would be helpful
in evaluating its usefulness. Please provide thea to Chairaan Brooks
and the Ranking Republican, Kr. Fish, of the Conaittee on the Judiciary,
whoa we have askad to conduct appropriate oversight on the part of the
House.
With every good wish, we are
w Thoaas 8. Foley Richard A. Gephardt Robert H. Michel
The Speaker Majority Leader Republican Leader
Mr. David Heade
legislative Counsel
13 6 Cannon House office Building
Washington, D.c. 3051S
310
Bnitd States Senate
WASHINGTON. DC 20510
September 28, 1992
Francis L. Burk, Jr., Esq.
Legislative Counsel
The United States Senate
Washington, D.C. 20510-7275
Dear Mr. Burk:
We are writing to express our support for the pilot project
that the Governance Institute has developed, in cooperation with
the United States Court of Appeals for the District of Columbia
Circuit, to improve communications between the courts and Congress
about questions of statutory construction and congressional Intent.
We understand that this pilot project has already begun in the
House of Representatives and that the D.C. Circuit is prepared to
extend the project to the Senate. As Judge Coffin and Representa-
tive Kastenmeier have described this program to us, staff counsel
at the D.C. Circuit will identify recent opinions of that court
which address noncontroversial issues of statutory interpretation
based on apparent errors or omissions in legislative drafting. The
hope is that the identification and transmittal of such opinions to
the appropriate congressional committees will furnish information
helpful to Congress's efforts to improve its communication of leg-
islative intent in statutory drafting.
This project offers great promise as a thoughtful and produc-
tive step in improving communications between the judiciary and the
Congress to the benefit of both branches. Its extension to both
Houses of Congress should enhance the project's usefulness and per-
mit a more accurate appraisal of its potential benefits as consid-
eration is given to expanding the effort to other Circuits.
We are pleased that you have agreed to join your counterpart
in the House, David Meade, in serving as the point of communication
for this program by receiving opinions from the D.C. Circuit on
behalf of the Senate and forwarding them to the appropriate commit-
tees of jurisdiction for their consideration. We encourage all
Members and committees of the Senate to take advantage of the in-
formation that will become available through this mechanism.
Please let us know if there is anything we can do to assure
the success of this project as it is implemented in the Senate.
">S^«^ z^. A<^^^^£>^ ^^/^^
Robert C. Byrd Q Robert Dole ^^*a^ George J. Mitchell
President pro tempore Republican Leader Majority Leader
311
CongrtBsional TR^ecord
' fitted Socn
:/Ain<ricm
PROCEEDINGS AND DEBATES OF THE
102'
CONGRESS, SECOND SESSION
!. 138
WASHINGTON, THURSDAY, OCTOBER 8. 1992
No. 144
Senate
(Ltffiilatlv* day of Wedntiday, StpUmber X, 1992)
ba Senate met kt t-.V) a.m.. on the
Iratloo of Uie recess. u>d vu CAUed
>rder br U>e RoDor»ble Hownx Hsr-
, a Senator firom the State of Ala-
PRATm
<19 Cliaplaln. the Reverend Richard
'rialversoD. D.D., offered ths follow-
prayer:
;t ue pray:
cemal God. lovlnr Father In hoar-
ai the 103d Congres* adjooraa. may
who labor here dlaperee In the con-
Dce that You wUl never leave them
forsake them: that Tour love and
lance '*«" be theirs aa often as they
It It: and that Your presence wlU be
Jta.nt and relentless.
he Lord bleu you. and keep you: Tfce
d BMkt All face to ttiine upon you,
te graciouj unto you: The Lord lift
hu countenance upon you. and give
pmcf.— Numbers 7:24-28.
tr.rn.
RESERVATION OP LEADER TIME
The ACTTINO FREEIDE2iT pro tem-
pore. Under the previous order, the
leadership tijne Is reserved.
PILOT PROJECT TO STRENGTHEN
COMMUNICATIONS BETWEEN THE
COURTS AND CONGRESS
Mr. MITCHEI^ Mr. President, for
the information of the Senate. I would
like to describe briefly a pilot project
to Improve eommonicatlons between
the Judicial and legislative branches.
The project, which the disUnruiahed
Republican leader and I have been ad-
vised Is already underway in the House,
is to establish and test a system for
communicating to the Congress Fed-
eral appellate opinions which Identify
drafUsf problems In acts of Congress.
While the Congress Is naturally aware
of major Issues concemins the con-
struction of its ISKlslatlon. there is
concern that other Issues rerardinir the
Interpretation of statutes, which do
sot evoke public controversy, may es-
cape the attention of the CooKrees.
Courts, Goyemment agencies, citizens,
and businesses may be required to ex-
pend considerable public and private
resources to resolve even relatively
minor questions of statutory interpre-
tation through litigation.
AFPOINTMENT OF ACTING
P.^.SSIDENT PRO TEMPORE
•he PRESmiNO OFFICER. The
rk win please read a communication
Che Senate from the President pro.
ipore [Mr. BYlU)).
ho assistant legislative clerk read
followlnr letter
U.8. 3X.-UTS.
piuamoiT rao TxxTORa,
Waihlnfton. DC. OeloUr I. DO.
Hi Senau:
r.itt ch* proTisloas of rale I. Motion 9, of
£Lfc2dls( Roles of the Senate. I hereby
out the Honorable Hownx HzruM, a
^tor trom the Scau of ftlehem, to psr-
n -J>» 4attee of the Chair.
RosxxT C. Btbd.
■\z. HEFLIN thereupon aeeumed the
ilr OS Acting Presldsnt pro tempore.
NOTlCe
A flnal issue of the Congressional Record for the 102d Congress,
second session, will be printed after the sine die adjournment. Members
may submit manuscript for printing to the Official Reporters of Debates
not later than Octol»r 29, 1992. The Interim Issue will be dated
October 29, 1992, and delivered on October 30.
None of the material printed In the Congressional Record during the
recess may contain subject matter, or relate to any event, which occurred
after the date the Congress officially adjourned.
No provision herein shall be construed to supersede the two-page njle.
All material must t>e signed t>y the Member and delivered to the respeo-
Ave offices of the OfflciaJ Reporters of Debates. Room KT-60 or S-220
of the Capitol. These offices an open Monday through Friday between
the hours of 10 a.m. and 3 p.m.
Members of Congress deshing to purchase reprints of materials print-
ed in the Congressional Record during the adjournment may do so through
the Congressional Printing Management Division, located at the Govern-
ment Printing Office. This office may be reached by telephoning
512-0224 between the hours of 8 a.m. and 4:30 p.m. daily.
By order of the Joint Committee on Printing.
CHARLIE ROSE, Chairman.
e Thi. "bullcr lytnbol id«iuf.« ituemenu or io*eroonj whidi are oo« tpokea by . Mnnber of ibc Seoste ea tfa« floor.
S 17537
312
k 4
53^
CONGRESSIONAL RJECORD — SENATE
October 8. 1992
Udtr thd project, which wtll b«rlii
w;ch uhd U.S. Courc of Appo&la for cha
DIbcrict of Columbia Circuit. st&£f
Ciuasel a,c th6 court will tdactlfy. ajid
trr-a3ni;t to the Senaca's logtalatlve
cou.*j:-u1. Frar-lc Buik. rccsct opinions
-A-'Alch cddriss ccQcoatrovcr«iai Isdties
cf At:LtuLory Interpretatloa th&C are
lajed on apparent errora or omluiona
\r. Ic^tAl&tlve drartln?. On the SanaCa
v1cl«. tha IcfflaUclva counsel, who has
:o:nod In rcccm.Tiendlng the project to
u<. V.111 tr'-r.tf to tha actonilon of the
*p;roprl2.t9 corr.^iltteos of Jsirlsdlctlon
li.e op:r.:ons ho recelvaa from the
*:jir\.. Our hope Is that commtttee staff
^.'^d le^elatlve aaslatants to members
V. ill then Join the legislative counsel In
a.*: e:*fcrt to Identify the issues In those
c;;:nlcns that eugffest the possibility of
corrective legislation for particular
u:ittere cr. Importantly, bear gen-
erally on the draftinff of future legisla-
tion that effectuates the intent of Con-
vress and provides clear guidance to
:he couru and affected parties.
I a^lc un&nlrr.ous consent that there
I'O placed in the Record a July 23. 1992.
U:.tcr from U.S. Senior Circuit Judge
FrH-cic M. Coffin and former Represent-
»i;lve Robert W. Kastenmeler, to the
d.-'tl-i^'jlshed Republican leader and
rr.e. brlnglnj the project to our attec-
f.oo. and a letter of September 28. 1992,
to ta3 Senate legislative counsel. In
which the distinguished President pro
tempore of the Senate Joined the Re-
puh'Mceji leader and me in expressing
our support of the project.
* Th« first focus cf thu project U th« oplo*
lou ol the U.S. Court of Appi»als for th« O.C.
Circuit, but oth«r clrcalts ar« •xpoccM to
baccms lavolTod. ladftod, at its recent mcet-
tnr la Jons. Cb« U.S. Judicial Coofareacs
Conunltc«e on tho Judicial Brmach (chaired
by Judf* DeaaeU R. TachA) cook tups to
•licit the InteMSt of other cLrcnlts.
Thl3 pilot project Is already ondervsy tn
the House of RepreMntattvee. We eaclose the
blparUA&a lecter of Sp«aJcer Polay. Majoricy
Leader Gephardt aad RepobUcaa Leader
Michel, lauachlDff thlj rood rovBr^rr.eoc,
noo-partlAan effort. We qutt« a^ree with the
Hoose leadenhJp'i view that "the prc»Tani
would be molt oaeftii If It were epplled to &il
clrcQlu tJid both housee of Coofress." As wo
s«ek to Unplemenc chid pilot project In cht
Senate, we have been rrateful for the sup-
port of Legl^Utlve Cotinael Francis L. Burk.
and Legal Counsel Michael Davidson. At
their tu^eatlon. we com now to yon for
yoor guidance and. we hope, approval.
This project on Judicial- legislative rela-
tions began some years aco. at the initiative
of the U.S. Judicial Conference' Committee
on the Judicial Branch (then chaired by
Judpe Coffin). It was the feeling of the
Judges, several of whom were former legisla-
tors, that efforts should be made to lirprove
communications becwoen the branches, to
overcome onneceesary tensions that Impeded
the effective functlonlnc of each. The Gov-
ernance Institute, a non-profit or^ainlsatlon
In Washlngxon. D.C.. was cr«at«d to help ex-
plore the full range of relations between the
branches, working with declslonmaken with
an eye towards practical resulta. We have
been very much involved In Its activities
(Judge Coffin as a founding dlrvctor and Bob
Kaetenmeler as Distinguished Fellow).
With the opinion Q-anamltt&l proceu In
place. Congrees will havo a better sense of
the Judiciary's interpretation of Its work.
Moreover, the }udlciary may have a better
IT^ere being no objection, the letters sense of congressional views ahoat Judicial
were ordered Co be
RExrop.:;. as follows:
printed in the
JUI.T 38. 1933,
Hon. Cgorok MrrcHEu^
.v/u/ortry Leader.
Hen. RofiKRT DOLZ.
.VlTUrriry LtadtT.
U.S. Stnau.
Deaa Se-sator MrrcHXLL jlvd Senator
DOLE: Prom our perspectives as legislator
a^d Judge, we hope that we might Intarest
you m a pilot project which seeks to bnlld a
bridge between the Judiciary and the Con-
grees. Our effort tries to atrengthea commn-
nications between the branches by develop-
ing an lostltutlocal procaas whereby opin-
ions of the federal courts of apiwal. identt^-
Ing discrete nonoontroverelal laeues In stat^
ut«s. will be forwarded without coauneat to
t&e IcTiaUUve branch. Those technical mat-
tars have to do with apparent gmmreatical
errors, drafting gUtches. Utlgatlon-hrewtng
amblguttles. or gap-flUing. Research Indi-
cates that Osngress tends to be largely as-
aware of the Judicial opinions Interpreting
legislation (but for major cases, or thosa In
which an Interest group seeks some legtsla-
Ure relleO. Although there are many things
thai may be done to make commonlcaUon
between the branches more effective, this
pro>ct would seem to be among the most
promising. It does not Impinge opon the aa-
tooorr.y of either branch. Congressional com-
mittees need act only on those stacatcrr
omlutoos. ambiguities, or internal incon-
slsLeoc:es that they deem worthy of correc-
U03. But to the extent that "statutory
housekeeping" takes place, the Congrees bet-
ter fuiruis lu purpose and courts will beneQt
by having oeedieas litigation forestelled.
Interpretation of statutea Over time, im-
provements might be seen in the drafting, io-
terpretatlon and revtaion of statutes.
We hope we might have your support to ex-
tend this pilot effort to the Sanete. and that
some appropriate communication (perhaps
similar to the one Initiated by the House
leadership), might be sent to relevant per-
sons In the Senate. Should you or your staffs
need further infonnatlon about the project,
we would be happy to provide It. Please feel
free to contact us or Robert v^i^r^^nn. the
president of the Oovemance Institute (and
the Walsh. Professor of Oovenunent and Pro-
fessor of Law at Georgetown University). By
way of context, apart from the letter of the
bipartisan House leadership, we enclose: In-
formation about the process to be followed in
the House of Re presenta elves: a background
memorandum: a Law review^ article on the
subject: some information about the Govem-
anoe Institute: and a copy of "Judges and
Legislators: Toward Institutional Comity."
Knowing how busy you and your staffs are,
ws are especially thankful for your atten-
ClOB.
Sincerely,
ntAJaM. COFTIM.
f/X Senior CtrcuiC Jttdoe Board Director,
the Gcvemance Institute.
Robert w. Kastdocetxr.
CKalT. Sationai CorrmUsion on Judicial Dii-
cipilne and Renovai. DUtinffuijhed Fti-
loxa.Ou Governance Institute.
U.S. Senatx.
Wastdnoton. DC. September 24. 19S2.
FRAMC13 L. BURX. Jr.. Esq.
LegUlative Counsel.
t/_S. Senate. WaalUn^ton. DC.
DkaA Ma. Burc: We are writing to express
our support for the pilot project Chat the
Governance lastltuu has developed. In co-
operation with the United BUtes Court of
Appeal! for the District cf Columbia Circuit,
to Improve communications between the
courts and Congress about questions of sut-
Qtory coastractlon and coogressloaal IntenL
We UiMerstand that this pilot project has
already begun In the House of Represents-
tlvM and that the D.C. Circuit Is prepared Co
ertsDd the project to the Senate. As Judge
Coffin and Repreaeotatlvs ICasteomeler have
described this program to us. staff counsel at
the D.C. Circuit will Identify recent opinions
of that court which addrsii noocootroverslal
issues of statutory Interpretation based on
apparent errors or omissions in legislative
drafting. The hope is that the IdentlHcatloa
and transmittal of such opinions to the a^
proprtate congressional committees will fax-
nlsh Informacion helpful to Congress's ef-
forts to Improve Its ^mmunlcatlon of legis-
lative In cent In statutory drafting.
This project offers great promise as a
thoaghtfdl and productive step In Improving
communications between the Judiciary and
the Congress to the benent of both branches.
Its extension to both Houses of Congress
should enhance the project's usefulness and
permit a mors accurate appraisal of its po-
tenUal beneCts as consideration is given to
expanding the effort to other Circuits.
We are pleaaed that you have agreed to
Join our counterx^art In the House, David
Meade. In serving as the point of commu-
nication for this program by receiving opin-
ions from the D.C. Circuit on behalf of the
Senate and forwarding them to the appro-
priate committees of Jurisdiction for their
consideration. We encourage all Members
and committees of the Senate to take advan-
tage of the Information that will become
available throagh tht* mechanism.
Please let as know iT there Is anything we
can do to assure the success of this project
as It is Impleaented in the Senate.
Sincerely,
ROBCRT C. Btrd.
Resident pro tempore.
ROB&RT DOLK.
tieputttcan Leader.
GBOROS J. MTTCB£LIm
Majority Leader.
MORNING BUSINESS
The A(7nNQ PRESIDENT pro tem-
pore. There will now be a period ft)r the
tranBactlon of momlntr buslneae for not
to extend beyond the hour of 9 a.ni..
with Senators permitted to speak
therein for not to exceed 6 minutes
each.
The Senator troziL Florida [Mr. Gra-
ham] win be recognized to speak for up
to 20 minutes.
There will then be 2 hoars of debate
prior to the vote on the motion to In-
voke cloture on the conference report
accompanying H.R. T76.
Under the previous order, the Senate
will proceed at the proper time to the
consideration of the conference report
accompanying- HJL 429.
Who seeks recognition?
Mr. GRAHAM addressed the Chair.
The ACTINO PRESIDENT pro tem-
pore. The Senator from Florida la rec-
ognized.
CONCERNS REGARDING ENERGY
BILL
Mr. GRAHA^f. Mr. President, Che
purpose of my remarks this morning' is
313
Statement of
L. Ralph Mecham, Director
Administrative Office
of the United States Courts
BEFORE THE
JOINT COMMITTEE ON THE ORGANIZATION
OF CONGRESS
June 29, 1993
314
Distinguished Chairmen:
My name is L. Ralph Mecham, and I am the Director of the Administrative
Office of the United States Courts. I also serve as the Secretjuy to the Judicial
Conference of the United States. I appreciate the opportunity to submit this
statement on behalf of the Federal Judiciary to provide information on the
relationship betv^een the Judidatl and Legislative Branches. The importance of
communication and cooperation among all three branches of government cannot
be overstated. The foundation of our system of government is three equal bremches,
and we must recognize and respect the roles and responsibilities each branch is
assigned. The Judiciary welcomes the opporttmity to share its thoughts with this
Committee and to encourage a continuing dizdogue and interaction between our
branches. Although there are some committees in Congress with which the
Judiciary deals on a daily basis, such as the Judiciary, Appropriations, and Public
Works Committees, there are many committees where the contact is more linuted.
I thought it might be helpful to provide a brief overview of how the Federal
Judiciary is structxired before providing specific examples of interaction between the
two branches.
I Structxue of the Federal Judiciary
A. The Judicial Conference of the United States
The federal court system governs itself on the national level through the
Judicial Conference of the United States. In 1922, the Cor\ference of Senior Circuit
Judges was created by Congress to "serve as the principal policy making body
concerned with the administration of the United States Courts." In 1948, Congress
enacted §331 of title 28 U.S.C, changing the name to the Judicial Conference of the
United States. The Judicial Conference is a body of 27 federal judges composed of the
Chief Justice of the United States, who serves as the presiding officer; the chief
judges of the 13 courts of appeals; the chief judge of the Court of International Trade;
and 12 district judges elected from the regional circuits.
Section 331 of title 28 specifically provides that the Conference shall:
o Make a comprehensive survey of the conditions of business in the
courts of the United States;
o Prepare plans for the assignment of judges to or from courts of appeals
or district courts, where necessary;
315
o Submit suggestions to the various courts in the interest of promoting
uniformity of management procedures and the expeditious conduct of
court business;
o Exerdse authority provided in §372(c) of title 28 for the revievsr of circuit
council conduct and disability orders filed under that section;
o Carry on a continuous study of the operation cmd effect of the general
rules of practice and procedure in use within the federal courts, as
prescribed by the Supreme Court pursuant to law; and
o Submit to Congress, through the Chief Justice, an annual repx)rt of the
proceedings of the Judicial Conference jmd its recommendations for
legislation.
The Conference operates through a network of committees created to address
and advise on a wide variety of subjects, such as automation, personnel, probation
and sentencing, space, security, and matters affecting the jurisdiction of the federal
courts. A list of the Judicial Conference Comnuttees is attached. Of particular
interest is the Executive Committee of the Judicial Conference, composed of seven
conference members and the Director of the Administrative Office of the U.S.
Courts, which has been assigned the responsibilities to coordinate legislative liaison
on behalf of the Judicial Conference cmd to maintain and improve judidid-
legislative relationships.
B. The Administrative Office of the United States Courts, the Federal
Judicial Center, and the United States Sentencing Commission
Many of the support functions for the federal court system are performed by
the Administrative Office of the United States Courts (AO). The AO was created in
1939 by Congress as an administrative body for the courts that functioi\s
independently of the Executive Branch. The AO is directed and supervised by the
Judidd Conference. In that capadty, the AO prepares and submits the budget and
legislative agenda for the courts to the Judidal Conference for transmittal to
Congress. The AO monitors legislation that affects federal court operations and
personnel, and prepares judidal impact statements on major bills, which if enacted,
would significantly affect the workload of the courts. It provides administrative
assistance to appellate, district, bankruptcy, and magistrate judges, derks of court,
probation and pretrial services officers, court reporters, public defenders, and other
court persormel. The AO also jjerforms audits (financial examinations of court
accounts); manages funds for die operation of the courts; compiles and publishes
statistics on the volume and distribution of the business of the courts; and
recommends plans and strategies to efficiently manage court business. Another
316
major function of the AO is the provision of professional staff supp>ort to the
committees of the Judicial Conference.
Daily contacts with Congress are handled by the AO either by the Director or
through senior staff personnel who report to the Director. The Legislative and
Public Affairs Office has four professionals who maintain full-time liaison activities
with Congress on behalf of the Judicial Conference. Other specialized legislative
activities and budget-related issues are handled directly by personnel at the AO with
expertise in these areas. These conununications through staff offices are routine and
number in the thousands per year.
AdditioHcdly, the Federal Judicial Center is an indep>endent agency in the
Judicial Branch. Its primary responsibilities are conducting research on the
operation of the courts, and the education of judges and federal court personnel. Its
Director periodically transmits to Congress the results of research and testifies on
various issues at the request of Congress.
Finally, the United States Sentencing Commission is an independent body
within the Judicial Branch that maintains its own contacts with Congress.
n Judicial-Legislative Interaction
The Judicial Branch has grown sigiuficantly over the past few years, and it
faces significant challenges as the year 2000 approaches. Currently there are 842
Article in judgeships, more than 400 senior judges, 326 bankruptcy judges, 381 full-
time and 97 part-time magistrate judges, and over 27,000 Judicial Branch employees.
As we confront these challenges, the Judiciary realizes the critical role that Congress
will play in shaping the Judiciary in the years ahead — not only in terms of the
number of judges, but in terms of jurisdiction, fvmding, and structure. At the same
time. Congress should also recognize that judges and court personnel have
experience £ind expertise in the workings of the court system and more broadly, the
justice system, which should be very helpful to Congress as it considers legislation
affecting the Judiciary.
Although many Members of Congress know the judges and court personnel
in their respective districts. Members may never have had the need or occasion to
deal directly with the Judicial Conference or the AO. And Members — or judges —
may not be aware of the numerous diiily communications between the Judicial and
Legislative Branches.
There are nimierous examples of the informal and formal mechanisms in
place to facilitate and encourage communication between the branches. The resuit is
317
a collegial existence that respects the necessary separation of powers, yet recognizes
the value to both branches and the nation of a working interbranch relationship.
There are constant exchanges of communications between the Judicial Conference
leadership, as well as among the administrative, operational, and resccirch
institutions of the Judidtiry and Congress. These communications include not only
formal letters, documents, and testimony but also numerous informal contacts with
Members of Congress and their staff to explain matters of concern to the Judiciary
and to respond to questions and concerns of Members of Congress.
The following are some examples of joint Legislative-Judicial Branch
initiatives and communications:
• Members of Congress traditionally address the Judicial Conference of the United
States at its biannual meeting. Senator Howell T. Heflin, Senator Orrin G. Hatch,
Representative William J. Hughes and Representative Jack Brooks have spoken at
recent meetings of the Judici2d Conference.
• Members of Congress and congressional staff are invited to attend and address the
Judicial Conferences of the 13 federal circuits. For example. Senator Joseph R. Biden
and Representative Hughes recently delivered major addresses to the Third Circuit
Judicial Conference in April.
• Periodically, the Chief Justice hosts informal liuicheons at the Supreme Court
These meetings provide a forum for the discussion of critical areas of judicial
administration with key members of Congress and leaders of the Judicial Branch.
■ The Judicial Conference has, from time to time, established special committees to
communicate its views on important legislation. For instance, the Ad Hoc
Committee on Gender-Based Violence has spent nearly two years studying and
engaging in a dialogue with Congress on the Violence Against Women Act.
• The Judicial Conference has invited congressional participation in special aspects
of its work. For example, the Committee on Long-Range Planning, which hjis the
broad and important charter of formulating a long-r^mge plan for the Judicial
Branch, has benefitted from congressional input. Several Members from the
Appropriatioi\s and Judiciary Committees attended a conference sponsored by that
Conunittee and the Federal judicial Center in 1992 at the Supreme Court.
• The Judicial Branch Committee of the Judicial Conference has coordinated an
effort for judges to invite members of Congress to observe the courts in their
districts and disoiss issues of mutual interest This enables Members to gain
valuable firsthand knowledge about the operations of the courts and to educate the
judges about the realities of Congress.
318
• Legislation has resulted in the creation of various entities that have brought
leaders of the branches together to study issues of common concern. Perhaps the
most noteworthy was the Federal Courts Study Committee, which included federal
judges. Members of Congress, and other legal scholars. The Committee conducted
one of the most comprehensive reviews ever of the federal court system. Many of
the recommendations contained in its April 1990 final report have since been
enacted into law as improvements currently in use in the federal courts. The
National Commission on Judicial Discipline and Removal, which will issue its final
report on August 1, 1993, and the Citizens' Commission on Public Service and
Compensation are other examples of interbranch participation.
• The Brookings Institution Seminar on the Administration of Justice annually
brings together the leaders of the three branches. Participants have engaged in an
off-the-record dialogue on the major issues of the day. The seminar has a long-
standing tradition of providing the framework for establishing institutional
solutions to problems.
• The Rules Enabling Act is an ideal example of how the Judiciary and Congress
work together for the more efficient operation of the federal coiuis. The Judicial
Conference and its committees conduct a lengthy review of all proposed changes to
the Federal Rules of Practice and Procedure, allowing for public comment in writing
and at open hearings. Often, congressional staff attend Rules Committee meetings
or heeuings. Congress has an opportunity to act on any proposed change before it
t£ikes effect. There have been some bills in recent years that have circumvented the
Rules Enabling Act. The position of the Judicial Conference is that such proposals to
change important court rules outside the Rules Enabling Act process, and without
input from the courts, bar, and public are counterproductive. The Conference urges
Members of Congress to have confidence in and to rely on the statutory rules
process.
•The D.C, First, Third, and Tenth Circuits are involved in a project in which staff
attorneys review opinions as they are handed down to determine whether they
might be of interest to Congress. Appropriate opinions that demonstrate ambiguities
arising from the interpretation of statutes are forwarded to the leadership and the
legislative counsels' offices. This idea originated with the Governance Institute and
is another avenue of communication.
The above examples are illustrations of how Congress and the Judiciary have
maintained effective mechanisms for communicating and working together. But,
ample communication does not always result in agreement or action. For example,
the Judiciary Committees originated and the 102d Congress enacted legislation to
authorize 35 new bankruptcy judgeships. However, because of significant budgetary
319
constraints, the appropriating committees have been unable to provide the
necessary funding. Another example is the proliferation of legislation to federalize
crimes that traditionally tire handled by the state courts. This expansion of
jurisdiction has triggered a significant rise in workload. However, often this
legislation is enacted without providing the Judiciary with the necessary resources
to meet the increased workload.
I believe that the Federal Judiciary and Congress have developed a strong
working relationship. Congress has recognized the expertise of judges in many areas
and has dravsm upon their experiences on many occasions. Judges frequently testify
before congressional committees, often over a hundred times in a given Congress.
We appreciate the reception they are given and the acceptance of many of our
proposals or observations. Occasionally there is disagreement, but this may be a
healthy example of the legislative process.
We recognize that the relationship between our branches can be improved.
We also recogruze that the Legislative, Executive, and Judicial Branches do not
operate in a vacuum.
In his 1992 Year-End Address, the Chief Justice, in commenting on the
various roles of legislators, executive officials, and judges, stated:
The central challenge is to blend these sometimes
conflicting perspectives into a responsible policy that will best
serve the national interest. We have often met this challenge in
the past and can do so again. We will fail in this endeavor,
however, unless we work cooperatively, all the while retaining
respect for the good faith of all participants and the legitimacy of
their different perspectives.
Justice Robert Jackson once said, in a different context to be
sure, "[t]he Constitution. . .contemplates that practice will
integrate the dispersed powers into a workable government. It
enjoins upon its branches sepeirateness but interdependence. . . ."
It is our separateness that defines our responsibilities. It is our interdependence
that provides our strength.
Thank you for this opportunity to share some thoughts writh this Committee.
As Congress begins its evaluation of its ov^m role in our system of government, the
Judiciary is pleased to pcu-ticipate in the process.
320
ATTACHMENT
CHAIRMEN OF THE COMMITTEES OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
AND THE EXECUTIVE SECRETARUT
Marck 1993
NOTE: An abbreviated statement of each committee's jurisdiction is provided
below. The full statement of jurisdiction can be found in the JUDGES' MANUAL,
Chapter I, Exhibit B, and is also available upon request to the Administrative
OfiBce. Staff support for the committees is provided by the Secretary of the
Conference, w^ is also the Director of the Administrative OfiBce of the United
States Courts. An Executive Secretariat has been established within the agency for
this purpose, consisting of senior members of the Administrative OfiBce's
processional staff who dedicate all, or a substantial portion, ol their time to the
work of the Judicial Conference and its committees. The Executive Secretariat
function is coordinated by the Judicial Conference Secretariat
EXECUTIVE COMMITTEE: The senior executive arm of the Conference.
Honorable John F. Geny
U. S. District Court, New Jersey
Karen K. Siegel
Chief, Judicial Conference Secretariat (202-273-1140)
COMMITTEE ON THE ADMINISTRATIVE OFFICE: To perform general
oversight of Administrative OfiBce operations.
Honorable Thomas P. Jackson
U. S. District Court, Washington. D. C
(Vacant)
Deputy Director (202-273-3007)
Cathy A. McCarthy
Chief, Management Coordination (202-273-1 ISO)
321
COMMITTEE ON AUTOMATION AND TECHNOLOGY: To coordinate the
automation program in the courts and to improve automated resources available to
the federal judiciary.
Honorable Rya W. Zobel
U. S. District Court, District of Massachusetts
Roy L Carter
Assistant Director, Automation and Technology (202-273-2300)
COMMITTEE ON ADMINISTRATION OF THE BANKRUPTCY SYSTEM: To
perform general oversight of the federal bankruptcy system.
Honorable Lloyd D. George
U. S. District Court, District of Nevada
Francis F. Szczebak
Chief, Bankruptcy Division (202-273-1900)
COMMITTEE ON THE BUDGET: To assemble and present to Congress the
budget for the judicietl branch.
Honorable Richard S. Arnold
U. S. Court of Appeals, Eghth Circuit
Raymond A. Karam
Assistant Director, Finance, Budget and
Program Analysis (202-273-2000)
Dewey R. Heising
Chief, Budget Division (202-273-2100)
COMMITTEE ON THE CODES OF CONDUCT: To provide advice on the
application of the Code of Conduct for United States Judges and other judicial
branch codes of conduct and Titles III (relating to gifts to federal employees) and
VI (relating to limitations on outside earned income, honoraria, and outside
employment) of the Ethics Reform Act of 1989, as amended.
Honorable R. Lanier Anderson
U. S. Court of Appeals, Eleventh Circuit
R. Townsend Robinson
EEO and Special Projects (202-273-1260)
Marilyn J. Holmes
Assistant General Counsel (202-273-1100)
322
COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT: To
study and make recommendations on matters a£fecting case management, juiy
administration, and other subjects as assigned by the Executive Committee.
Honorable Robert M. Parker
U. S. District Court, Eastern District of Texas
Duane R. Lee
Chief, Court Administration Division (202-273-1530)
COMMITTEE ON COURT AND JUDICIAL SECURITY: To oversee all court and
judicial security matters.
Honorable C Arlen Beam
U. S. Court of Appeals, Eighth Circuit
William A. Cohan, Jr.
Chief, Court Security OfBce (202-273-1517)
COMMITTEE ON CRIMINAL LAW: To oversee the federal probation system and
to review legislation and other issues relating to the administration of the criminal
law.
Honorable Vincent L. Broderick
U. S. District Court, Southern District of New York
E>onald L. Chamlee
Chief, Probation Division (202-273-1600)
COMMITTEE ON DEFENDER SERVICES: To oversee the provision of legal
representation to defendants in criminal cases who cannot afford an adequate
defense.
Honorable Gustave Diamond
U. S. District Court, Western District of Permsylvania
Theodore J. Lidz
Chief. Defender Services Division (202-273-1670)
323
COMMITTEE ON FEDERAL-STATE JURISDICTION: To analyze proposed
changes in federal jurisdiction and to serve as liaison with state courts.
Honorable Stanley Marcus
U. S. District Court, Southern District of Florida
Karen M. Kremer
Office of Legislative and PubUc Affairs (202-273-1120)
COMMITTEE ON FINANCIAL DISCLOSURE: To supervise Uie filing of financial
disclosure reports by judicial officers and employees.
Honorable Julian A. Cook, Jr.
U. S. District Court, Eastern District of Michigan
Raymond A. Karam
Assistant Director, Hnance, Budget,
and Program Analysis (202-273-2000)
COMMITTEE ON DMTERCIRCUIT ASSIGNMENTS: To assist the Chief Justice
in assigning and designating judges for service outside their circuits.
Honorable Thomas F. Hogan
U. S. District Court, District of Columbia
John E. Howell
Chief, Article in Judges Division (202-273-1860)
Marion A Ott
Office of the Judicial Conference
Secretariat (202-273-1140)
COMMITTEE ON THE JUDICIAL BRANCH: To address problems affecting the
judiciary as an institution and affecting the status of federal judicial officers.
Honorable Deanell R. Tacha
U. S. Court of Appeals, Tenth Circuit
John E. Howell
Chief, Article UI Judges Division (202-273-1860)
324
COMMITTEE ON JUDICIAL RESOURCES: To consider all issues of personnel
administratioo, including the need for additional Article IH judges and support stafi^
and to supervise the operation of statistical systems and the development of work
measurement formulas.
Honorable Carolyn R. Dimmick
U. S. District Court, Western District of Washington
William J. Lehman (Acting)
Assistant Director, Administration
and Human Resources (202-273-1200)
David L. Cook
Chief, Sutistics Division (202-273-2240)
Charlotte G. Peddicoid
Chie^ Human Resources Division (202-273-1270)
COMMITTEE ON LONG RANGE PLANNING: To coordinate the planning
activities of the judiciary.
Honorable Otto R. Skopil, Jr.
U. S. Court of Appeals, Ninth Circuit
Peter G. McCabe
Assistant Director, Judges Programs (202-273-1800)
Charles W. Nihan
Chief, Long Range Planning Office (202-273-1813)
COMMITTEE ON ADMINISTRATION OF THE MAGISTRATE JUDGES
SYSTEM: To provide oversight of the federal magistrate judges system.
Honorable Wayne E. Alley
U. S. District Court, W^tem District of Oklahoma
Thomas C. Hnatowski
Chief, Magistrates Division (202-273-1830)
325
COMMITTEE TO REVIEW CIRCUIT COUNCIL CONDUCT A^fD DISABILITY
ORDERS- To consider petiUons for review of final actions by circuit judicial
councils on complaints of misconduct or disability of federal judges, and to review
legislative proposals on judicial discipline and removaL
Honorable Levin H. Campbell
U. S. Court of Appeals, First Qrcuit
William R. Burchill, Jr.
General Counsel (202-273-1100)
COMMTITEE ON RULES OF PRACTICE AND PROCEDURE: To carry on a
continuous study of the operation and effect of the general rules of pracuce and
procedure.
Honorable Robert E. Keeton
U. S. District Court, District of Massachusetts
Peter G. McCabe
Assisunt Director, Judges Programs (202-273-1800)
ADVISORY COMMnTEE ON APPELLATE RULES
Honorable Kenneth F. Ripple
U. S. Court of Appeals, Seventh Circuit
ADVISORY COMMTITEE ON BANKRUPTCY RULES
Honorable Edward Leavy
U. S. Court of Appeals, Ninth Circuit
ADVISORY COMMITTEE ON CIVIL RULES
Honorable Sam C. Pointer, Jr.
U. S. District Court, Northern District of Alabama
ADVISORY COMMITTEE ON CRIMINAL RULES
Honorable Wm. Terrell Hodges
U. S. District Court, Middle District of Florida
ADVISORY COMMITTEE ON EVIDENCE RULES
Honorable Ralph K. Winter
U. S. Court of Appeals, Second Circuit
BOSTON PUBLIC LIBRARY
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CONfMITTEE ON SPACE AND FACIIJTIES: To oversee all space and facilities
issues affecting the federal judiciary.
Honorable Robert Broomfield
U. S. District Court, District of Arizona
William J. Lehman (Acting)
Assistant Director, Administration
and Human Resources (202-273-1200)
Gerald P. Thacker
Chief, Space and Facilities Division (202-273-1230)
COMMimx; TO review the criminal justice ACT: To study and report
on the administration and operation of the Criminal Justice Act of 1964, and to
make recommendations for legislation and for procedural or operational dianges in
the administration of the CJA program.
Honorable Edward C. Prado
U. S. District Court, Western District of Texas
Theodore J. Lidz
Chief, Defender Services Division (202-273-1670)
AD HOC COMMITTEE ON GEI«n)ER BASED VIOLENCE: To monitor
Congressional consideration of the proposed Violence Against Women Act of 1991
and, in coordination with the Executive Committee, communicate the Conference
position to members of Congress.
Honorable Stanley Marcus
U. S. District Court, Southern District of Florida
Karen M. Kremer
Office of Legislative and Public Affairs (202-273-1120)
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