would never use it. I know him well, and I know him as a man of great integrity. But, the point I would like to make is that the power exists in this reorganization plan to delegate to the examiner that power.

The CHAIRMAN. If they wouldn't do it, assuming they wouldn't do it, there is no need to grant such power.

Senator HRUSKA. Exactly. That is one of the points. Now, then, the function of granting an extension of time was one of the points that was raised yesterday. As was said, it is purely a ministerial act; there is nothing to it. A hearing examiner or an investigator goes out into the office of a corporation and serves it with a subpena to produce certain documents under section 6(d) and says, "Now, I will give you 30 days in which to assemble these things." That 30 days comes and goes, and perhaps the corporation president is sick or maybe they are very busy or it is inventory time, and they ask for an extension. Generally this is a nominal request and usually, in the normal course of affairs, it would be allowed. However, Mr. Chairman, suppose there is a denial of this request. Then where do we go? May I cite an example that occurred in connection with a subpena. This was not a subpena of a hearing examiner, Mr. Chairman, it was a subpena of a senatorial committee in which a demand was made for the records covering a period of 6 years of a corporation that has 21 divisions and probably 50 or 60 plants. They were asked not only for records and writings consisting of balance sheets and profit-and-loss statements at the end of each year, but also for records showing all price changes for the 1,000 most important products of that company. Assume that there could be 20 price changes within the course of a single year which would be small, I am sure, because it is a highly fluctuating market. If they had only 20 price changes each year and we multiply that by 1,000 there would be 20,000 price changes that would have to be listed after they were tracked down. There were 6 years in question so there would be 120,000 of these price changes. That would be a burdensome request. That would be a task which would take not days or weeks but months. Yet, blithely and almost with nonchalance this subpena was issued and served, and there is insistence now, with some modifications, that it still be complied with.

Now, here is a committee functioning in our body and there must be some protection of the rights of people who are appearing before it, so if this thing is pressed, I imagine we are going to have to come to grips with it. However, what do we have proposed in this case? A hearing examiner goes out into the field and makes a request, which in his judgment is a nominal request and one which he makes in all good faith. He feels he needs this information, and when he is denied or there is an explanation that it is burdensome and impractical to secure all this information in the time allowed, he might say no. Suppose by that time he has been in the field 2 or 3 weeks and he gets cantankerous about it and, insists that the information be furnished. What do we have? That in itself is a bad enough situation, but when the Chairman of the Commission says that "we propose to proceed along paragraph 6 and get these records and we propose to go through this hearing without any interlocutory appeals of any kind until the stage of final order is reached," what type of oppression are we apt to encounter at the hands of examiners, employees, and boards of em

ployees? I say that is too much delegation of power of the type which resides under the organic act in the hands of the Commission itself. Yet, under plan 4 it will lie within the power of the Commission--and all that is needed is three votes-to delegate the kind of power.

The CHAIRMAN. The thought that occurred to me was although the Chairman might oppose such authority, it could very well be delegated by three members.

Senator HRUSKA. It can be delegated by three members in a specific case, Mr. Chairman.

Now, I would like to get into the question of the appointment of bureau heads by the Chairman. Under plan No. 8, there is a specific reservation on that point. Plan No. 8 was adopted in 1950 and reads:

The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission.

I submit that under plan No. 4, by a rule, the Chairman could be authorized to appoint heads of committees, and that is all it would take. Yet, the heads of those sections are to some degree policymaking people. It is for the protection of the public interest that there should be an opportunity to inquire into their qualifications, their records, their predelictions, and their philosophical bent, and some publicity should be attached so we know what we are getting into. I am sure the Congress would like to know or at least have a record which they could summon and peruse for their edification.

This proceeding could be eliminated by rule under section 1 of plan 4 even though it is contained by way of special reservation, as I say. This power, protecting the confirmation by the Commission, is contained by way of special reservation in plan No. 8, adopted in 1950.

Now, Mr. Chairman, I should like to get into the question of changing the present procedure in the Commission dealing with an appeal from an examiner's order. As far as I know this is not found in the statute in the case of the Federal Trade Commission. It is in the case of the Federal Communications Commission. I believe it is section 409 (b) or 409 (c). Here we have a practice which has been prevailing in the Federal Trade Commission for a long time that when there is an order issued by an examiner it may, upon application of the respondent, be reviewed by the Commission. This is granted as a matter of course and considering some of the important cases before this Commission, including such far reaching measures as the compulsory dedication of patents to the public, for example, this is a vital procedure.

Under Plan No. 4 we have the proposal that we are going to adopt by rule or otherwise a procedure which is the equivalent of a certiorari procedure. It seems to me that even though the votes of two Commissioners are sufficient to get a review of the examiner's order under this certiorari procedure, there will be a destruction of it by partisanship of the board because there is lacking that ability to consider in a Commission session the appeal of a case of that kind. It is not enough to circulate a file around and to say, "do you favor appeal or don't you." That is not enough, Mr. Chairman, any more than the polling of a jury outside in 12 separate cubicles instead of in one common room would satisfy the requirements of the jury system.

The value of this appeal procedure lies in the ability of the Commissioners, after considering a case, to be able to exchange ideas and maybe influence one another's thinking, and that would be gone. There is some doubt as to whether the rights and privileges of the litigants are adequately and fully protected. After all, we can assume there would be instances where the examiner would be under the domination of a Chairman. This has no reference to the present personnel of the Commission, but it could happen. If this power of final order, subject to certiorari only, is delegated to an employee, he should be appointed, Mr. Chairman, not on the basis of civil service, but he should be appointed for a term of years, and a longer term of years, so that he would have some safety in tenure. He should have some safety as against the idea that he could be dominated by the Chairman on account of the assignment of duties or other powers the Chairman has. He should have some stability of the kind that makes the procedure of certiorari in our Federal court system so valuable and workable. Then if the Supreme Court doesn't want to grant the writ, they don't have to. But, if they don't, we have a high-caliber Senateconfirmed officeholder, the Federal judge, who is appointed for a long term of years, and he is governed by certain rules and precedents, which gives us some guarantee that the rights and privileges of a litigant are being given a fair hearing and a fair judgment. That will certainly not be the case if we delegate that vast power and vest it in an examiner or an employee or a board of employees, pursuant to plan No. 4.

It would be more in keeping with a truly independent judical position if we had either retained the present system or had an examiner that would be appointed for a number of years with confirmation. Otherwise, Mr. Chairman, under this plan which is advocated, there will be a chain of command much too direct from the President and the White House staff, via the Chairman of the Federal Trade Commission, which is in conflict with the principles that Congress has declared for the Federal Trade Commission and similar bodies. There can't be any question about it. After all, these regulatory bodies are sort of a hybrid in this sense. Congress enacts a general law and then it calls upon the regulatory body to implement that law with rules and regulations. Then by appointment of the President the Commission comes into being and it becomes a law enforcement agency. Well, it is a law enforcement agency, and it is a court and to have the power and the control and the chain of command go in only one way or predominantly in one way would destroy that set of principles which resulted in the creation of this committee and which is now at least congressional policy.

By the Chairman's assignment of cases to a Commissioner or examiner or to an employee or board of employees, on the basis of similarity of views of philosophy on a particular case which a Chairman himself might hold, a Chairman can assure virtual identity of his own views with those of the assignee in the hearing record or in the order, and this is a lot of power. Again, I believe that it is something that should be very carefully considered.

I realize that mandatory review does not exist in statute form in the Federal Trade Commission, but with all of the other changes involved here and in view of the radical change which the proposed certiorari

process would achieve, as a matter of policy, Congress should stop and take note, and the least that could be done is to subject this aspect to the full legislative process with hearings and with study.

Mr. Chairman, I do believe that we should have in formal printed form assurance in a plan of this kind that complaints could be issued only by the Commission; that bureau heads should be appointed by the Chairman, subject to confirmation of the Commission and that if certiorari is adopted as a procedure, the examiner should be appointed and confirmed by the Senate or in some other formal way. These are some of the requirements that I think would be inescapable if we follow the line of reasoning which I have been trying to delineate today. Of course, we can't amend the plan. We either have to accept it or reject it, I suppose, according to the rules, but if we reject it and make known as a Senate some of the fundamental minimum requirements which we feel should be retained in the procedures and in the delegation of powers of this Commission, I have an idea that there will be forthcoming a modified plan of reorganization with which we can live.

Now I know the argument is made, and I read again from the President's message—

The remedy is a far wider range of delegations to smaller panels of agency members or to agency employee boards and to give their decisions and those of the hearing examiners a considerable degree of finality, conserving the full agency membership for issues of true moment.

Mr. Chairman, as a lawyer I should like to pose this question: What is of greater and truer moment than the making of decisions by the passing on of their final form by the Commission? There isn't anything which more faithfully and truly and accurately determines policy than a course of decisions and if that idea is going to be dissipated in favor of this kind of delegation of powers, then I can foresee the time when we will be headed for real trouble. In the interest of avoiding substantial damage to the public interest, and I for one would not want to have any part in it, I do feel that this plan is sufficiently defective that it should be rejected with specific recommendations as to which of the fundamental procedures which are so inherent in our judicial process, we would insist upon being retained.

The CHAIRMAN. We can only do that by speeches on the floor, I guess, and there would be different views among the Members regarding that, possibly.

Senator HRUSKA. I am sure there is a division of opinion on this general subject.

The CHAIRMAN. Yes. As you pointed out, Senator, this plan must be accepted or rejected as it is. We can't modify it and we can't amend it, but I recall one plan-I have forgotten which agency it applied to-I believe it was REA—we did debate it and the plan was defeated and then subsequently a new plan was sent down, as you indicated, omitting the objectionable features of the first plan.

Senator HRUSKA. I am reminded that in the Post Office Department there was a similar matter some time ago with reference to postmasters. There is the history on that plan and, as I recall, there was a resolution of disapproval approved by the committee. So, for whatever influence it may have with this honorable body, I close my

staternent.

The CHAIRMAN. Do you have any questions?

Senator MUSKIE. I would like to clarify my understanding of the plans. It is a fact, is it not, that any delegation which may be authorized by the plan, if adopted, is subject to action by the full Commission.

Senator HRUSKA. Yes; three Commissioners can adopt any delegation of powers to which reference is made in section 1(a).

Senator MUSKIE. So that the full Commission may or may not approve delegations as broad as that?

Senator HRUSKA. Exactly and, as I pointed out in the case of issuing complaints, the present Chairman says he is unalterably opposed to having anybody in the Commission do it, but the power exists in this plan. We have no assurance Mr. Dixon is going to be there forever. That may change, and there are other powers just the same which reside in that plan and can be used. They exist. If they are not going to be used, why put them in the plan?

Senator MUSKIE. May I ask one more question? What are the reasons, one of the reasons given in these plans that it would enable the Commission to handle their workloads more expeditiously and efficiently. Have you commented on that?

Senator HRUSKA. Yes, I have, and I am serving, incidentally, on the subcommittee for Improvement of Judicial Machinery, and that is one of our problems. How do you reduce this congested court load in the 12 or 13 centers of congestion?

Senator MUSKIE. I notice Commissioner Anderson suggests greater manpower as the answer.

Senator HRUSKA. Yes.

Senator MUSKIE. But do you think, whatever your criticism of the plan may be, and you have made that criticism clear, do you believe that these plans would be of assistance in cutting the workload? Senator HRUSKA. In cutting manpower?

Senator MUSKIE. No; in equipping the commissions to handle their workload.

Senator HRUSKA. I certainly think it would make it more efficient. I shouldn't say more efficient because efficient implies merit. It would make it more expeditious. But, you see it would be at the price of sacrificing certain fundamental legal concepts which we have lived with ever since we have been a nation, and they are being frittered away fast enough without getting into the act by this wholesale method here. Expedition is good and speed is good and dispatch is good, but we should not sacrifice the quality of justice. There are vast properties and financial issues at stake and legal precedents which are made and judged by this commission.

Senator MUSKIE. In what other ways-again I came in late, so I don't know to what extent you covered this-in what other ways could you improve or equip the Commissions to deal with their work more expeditiously?

Senator HRUSKA. I think there are several.

Senator MUSKIE. We would like to have them in the record if they are not already in the record.

Senator HRUSKA. They are in the record. One of them is the Chairman's proposal on project attorneys, for example. This is a procedure where one man can follow all of the way through instead of having a