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Full text of "Interbranch relations : hearings before the Joint Committee on the Organization of Congress, One Hundred Third Congress, first session ... June 22, 24, 29, 1993"

Xy] ' S. Hrg. 103-122 

^ INTERBRANCH REUTIONS 



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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 

rdranci ReHtio'5. 103-1 Heari.. . . >„jj^^g 



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 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.) 



113 

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 

9 



114 

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 

10 



115 

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 

11 



116 

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 



12 



117 

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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118 

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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119 

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 
^- 15 



120 

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. 



16 



121 

At this point I will list a nvmber of issues to which you 
aay want to give furthar consideration: 

Base Closures - K New Leaislative-Rve cutive 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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122 

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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123 

Executive ^riv^ c y 
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. 



19 



124 

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 

20 



125 

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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126 

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 Appointm ent 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 . 

22 



127 

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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128 

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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129 

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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130 

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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131 

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 



27 



132 

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 



28 



133 

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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134 

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. 



30 



135 

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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136 

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. 



137 

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 

33 



138 

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 o f Techn ology 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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139 

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 

3 5 



140 

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 

36 



141 

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 an d 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 

37 



% 



142 

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 

38 



143 

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 

39 



144 

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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145 

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 

41 



146 

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 

42 



147 

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. A pproprlafcionn 
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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Congressional Access to Agency Information 

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). 



195 



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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. 



196 



31 

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). 



197 



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). 



198 



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 

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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. 

12 



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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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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 

IS 



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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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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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232 



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 



4 - 



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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 



- 5 - 



234 



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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236 



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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239 



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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240 



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 



- 12 - 



241 



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 



- 13 



242 



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 



- 14 



243 



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 



15 - 



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 



- 16 - 



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. 



- 17 - 



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. 



18 



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 



- 19 



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. 



- 20 



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. 



250 



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. 



251 



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 



253 



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 



254 



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 



255 



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, 



256 



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 



257 



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 



- 2 



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. 



260 



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 



- 5 - 



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 BEYO ND D IS TRUS T 

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 Sys tems. 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 



290 



- 3 - 

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 



292 



- 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." 



MTSg 



294 



- 7 - 

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 



297 



- 10 - 

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 Ins titutional 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 Pra ctical 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 Jud ges and legislators (pages 183- 
84), might a checklist of commo n 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 le gislative 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 le gislative history, attention should be paid to the 
ways in which legislative signals of intent could be mad e clearer. De serving scrutiny is the 
question of whether the most important and agreed-upon background and purposes of the 
legislation can be m ore 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 like ly that committee rep orts 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 
a greement 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 b e part of the authoritative 
le gislative history. 

Relatcdly, with regard to the Congressional Record, means should be devised so that 
jud ges 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 h istory 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 
communicat i ons betw ee n jud g es and legislators as to statutory revision would be helpful . 

Moreover, it would be useful to examine t he states' experiences with law revision 
commissions that provide for the orderly e v aluation of statutes, bring in g 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 Repr e se n tatives 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 mo re authoritative will also aid 
courts as thay weigh amicus briefs of legislato rs 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 develop ment 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 s tatutes, 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 STR ENGT HEN 

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. G RAHA M 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 



326 3 9999 05018 541 



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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