Mr. BROOKS. That is correct. Mr. MALLARY. Do you have any concern about the fact that by doing this we might be requiring, or might be providing a way to remove an officer who has been appointed under the current terms of the law; therefore, establishing a precedent for congressional interference or involvement in the removal of the executive officers? Mr. BROOKS. I would say, Mr. Mallary, that I am aware that the administration proposes to challenge the constitutionality of the bill on that ground. But the issue was debated on the Senate floor when the bill was under consideration there and the U.S. Senate found no constitutional problem. My language is essentially the same as that which was passed in the Senate. I agree with the majority of the Senators that, basically, there is no constitutional problem about the bill. However, I would be willing to make any changes in the bill that would clarify the issue but, at the same time, would preserve the objective of the legislation. I am working on some language that I will submit to the committee for your deliberation that might resolve this problem for those who think that a problem does exist. The language I am working on would abolish the present Offices of the Director and the Deputy Director of the Office of Management and Budget and create two new offices of a similar nature for which new appointments would be necessary. This would avoid the problem of removing an incumbent from office by legislation. The other language that I am working on to submit to you—I will send it over for you to take a look at, probably tomorrow or the next day, maybe today-would vest most of the functions of the OMB directly in the Director. Many of these functions are presently vested in the President as the result of two reorganization plans, even though Congress originally vested such functions in OMB's predecessor, the Bureau of the Budget. I think we should restore these functions in the Agency where the Congress originally intended them to be. Mr. MALLARY. Perhaps this is off the immediate subject of confirmation, but do I understand that you propose to submit legislation that would provide for the abolition of these two positions and for the creation of substitute positions with a slightly different title, but similar responsibilities? Mr. BROOKS. And vesting in that new organization the full functions of an OMB. Mr. MALLARY. Such as those powers which existed before the reorganization plans? Mr. BROOKS. That is correct. It would place all of those powers where they belong. OMB exercises those powers now, but to structurally put them together, so under the law they have that as a function makes sense. Mr. MALLARY. I might merely suggest, and I won't pursue it at this point, that we have the opportunity to look at and examine the suggestions. Mr. BROOKS. I will get it to you very shortly. Mr. MALLARY. But, by abolition of positions and creation of similar new ones, we might be able to establish essentially the same precedent we are confronted with in this after-the-fact confirmation. Thank you, Mr. Chairman. Chairman HOLIFIELD. The Chair is interested in the suggestion that the gentleman has made. And at the proper time, when he has perfected his language, I hope he will bring it to the committee. Mr. BROOKS. Mr. Chairman, I will be working on it this afternoon. I will try to have it tomorrow morning, if at all possible. Mr. HORTON. Would the chairman yield? Chairman HOLIFIELD. Yes. Mr. HORTON. Is this legislation you are proposing in lieu of the present legislation you have, or is it in addition to it? Mr. BROOKS. No, this would just be an amendment, just a suggested amendment which you might want to consider. Because some, Mr. Mallary, and possibly some others Mr. HORTON. I have a concern about the same thing. Mr. BROOKS (continuing). Have some concern about the constitutionality. And this would remedy that problem for them. (See p. 22.) Mr. HORTON. In other words, what you want to do is to create a new OMB by legislation to solve the problems? In other words, you are going to take away the powers of the President now delegated to an inferior office, set up a new agency, and create a Director of the OMB, and then take those duties from the President and give them to this new officer. Is that what you are proposing? Mr. BROOKS. No. What we would do is realign the functions of the Office of Management and Budget to include its present functions and authority, and those functions and authority that the Bureau of the Budget had prior to the two reorganization bills, most of which authority was delegated then into the Chief Executive, though he exercises it through that same Office of Management and Budget. This would consolidate those functions in the Office of Management and Budget which now exercises those functions and would create a new officer for that purpose, a Director and Deputy Director. Both purposes would help to streamline and simplify the organization. Chairman HOLIFIELD. The Chair might point out that Reorganization Plan No. 2 of 1970 was the vehicle which was used to transfer the powers of the Director of the Bureau of the Budget to the President and thus over to the new organization, the Office of Management and Budget, and that this committee reported out a disapproving resolution on that. Now, it is true that on the floor the committee's position was not affirmed, but this is no new position for the members, the majority of the members of this committee to take because we took it 2 years ago, even if we did not sustain our position on the floor. So this would be, as I understand it, Jack, a restoration of the powers to where it was by prior statute, rather than the changes which occurred by Reorganization Plan No. 2 of 1970. Is that correct? Mr. BROOKS. That is absolutely correct, Mr. Chairman. Chairman HOLIFIELD. The Chair recognizes the gentleman from Florida, Mr. Fuqua. Mr. FUQUA. Thank you, Mr. Chairman. Mr. Brooks, let me say I think you made a very excellent statement, and as a cosponsor of your bill, I think you made a very accurate assessment of the present situation. Reading some of the legislative history of the creation of the Bureau of the Budget in 1921, as you mentioned, I find that the Senate insisted that the Director be confirmed, the House disagreed, and in conference that portion was dropped. But at that time, it was in the Treasury Department and we probably had a budget of about $5 billion and the Bureau had about 10 or 20 employees. This is rather dissimilar to the present OMB with 700 employees and a budget of over $250 billion. So OMB's responsibilities have certainly multiplied. And I notice that President Nixon, in his Reorganization Statement No. 2 of 1970, said that the preparation of the budget as such will no longer be its dominant, overriding concern. So there have been many other duties that have been assigned to OMB. Some people call it the Office of Management and Budget, TOMB. It has certainly increased in functions materially over the years and I think that your proposal is a very appropriate thing for Congress to do. I want to commend the gentlemen on his statement and say I agree wholeheartedly. I have one question. Why is it necessary that we establish a term of office? Why shouldn't just the Director serve at the pleasure of the President, with the advice and consent of the Senate? Mr. BROOKS. My theory is that if a President, at the beginning of a 4-year term, submits a man as Director who was confirmed and has served for 4 years, and has been nasty and difficult, has come down and testified before Congress and told them it was none of their business, he would "keep all of his figures and facts and you can read what I printed," if they had differences over that 4-year period, they might welcome an opportunity to reconfirm such a man. And I think we should let them. I have some faith in the Senate. I think they would reconfirm a man who was qualified and dedicated, although they had differences with him. But there is a line beyond which some members of the Senate apparently feel they are entitled to a little more courtesy and consideration and I would like for them to get it. Mr. FUQUA. Since the creation of OMB, we have had three Directors, so that setting the term of office would in no way interfere should the President at some time decide he wanted to replace the Director or shift him to other responsibilities within the Government? Mr. BROOKS. None whatsoever. The President can dispense with their services from day to day. There is no limitation whatsoever on the President's full authority to dispense with the services, valuable as they may have been, of a Director of the Office of Management and Budget. Mr. FUQUA. I thank the gentleman. Thank you, Mr. Chairman. Chairman HOLIFIELD. We will now proceed. Thank you, Mr. Brooks. Mr. HORTON. I have a couple more questions. Do I understand, Mr. Brooks, that you are going to change your position with regard to the incumbent OMB Director standing for confirmation? Mr. BROOKS. No. Mr. HORTON. No, you are just going to submit new legislation? Mr. BROOKS. No. I am going to submit some language that would amend this legislation and would provide for a new agency with a little stronger powers. I would assume that the President would appoint this same individual as the head of that agency. It is essentially the same group of functions. He would then be up for confirmation for that new job, the old job having been abolished. (See p. 22.) Mr. HORTON. Suppose that legislation doesn't get effected; then, what is your position? Mr. BROOKS. Suppose what? Mr. HORTON. Suppose that legislation is not effected. I mean, we don't even know now what that legislation is. We have to have hearings on that Mr. BROOKS. You are having hearings. We are discussing it now. Mr. HORTON. Do you have an amendment to offer? Mr. BROOKS. We have been discussing it, talking about it. Mr. HORTON. The point I am making is the President has these authorities vested in him now, and what you are going to do is take these authorities away from the President. It seems to me you are substantiating my argument of an inferior officer. What you want to do now is remove any doubt with regard to his inferior status, meaning subservient to the President. He is an arm of the President, as it were; and I realize that you talk in terms of how important this Office is, and it is an important office. But it is really the Office of the President, or the President, who is very important. The President can do these things by himself without having any OMB. He can make these decisions. But he has designated someone to take this responsibility. I think that is an important distinction. What you want to do is change that so he will be a different type of officer. You want to classify him differently in the legislation and require confirmation. Now, do I understand from the amendment you are making, that you are retreating from the present position that you now have? Mr. BROOKS. I wouldn't put it that way, Mr. Horton. I would say in response to the Republican allegations that it is unconstitutional to require a President presently Mr. HORTON. That is not a Republican position. Mr. BROOKS. Yours and Mr. Mallary's. Mr. HORTON. That doesn't necessarily mean it is Republican. Mr. BROOKS. You have voiced concern about the constitutionality of this legislation. Mr. HORTON. I am concerned about the constitutionality. Mr. BROOKS. You questioned that. To reply to that question you raised and Mr. Mallary raised and that the Department of Justice raised, that issue was not successfully raised in the Senate. I have worked up some language that I am going to submit to you that might alleviate that problem for you. And it would reconstitute the functions of the Office of Management and Budget as they were for many years, many, many years. It would be a fully functioning organization and operation over there and the President would just name the Director of this new body and we would give whoever is appointed to that job an opportunity to be confirmed by the Senate. Mr. HORTON. It seems to me by virtue of the fact you are proposing an amendment which would clarify this, that you agree with the position that I have taken and apparently Mr. Mallary takes. There is a constitutional question about this. The other question I wanted to ask you is if your bill provides a term of 4 years? Why do you want to establish a term of 4 years for this office? We don't establish a term of 4 years for the Secretary of Defense, or the other offices, do we? Mr. BROOKS. It is a pretty important position and surely a man who had served well and ably for 4 years would welcome an opportunity to be reconfirmed by the U.S. Senate. Mr. HORTON. That is not the point. Mr. BROOKS. We get reconfirmed every 2 years. I want everybody to have an opportunity to share a little bit in the glories of public confirmation. We are not going to have the Director run for office, just let him be confirmed by the Senate. They are not such bad people. I like the Senate. Mr. HORTON. The other point I want to make is that this bill of yours does not change any powers, authorities, or responsibilities of the OMB Director. It doesn't change anything, does it? It is the same? Mr. BROOKS. Not as far as the Director is concerned. Mr. HORTON. All it affords is confirmation; is that correct? Mr. HORTON. It doesn't change the situation. The OMB Director is available to testify before the committees of the Congress. Mr. BROOKS. I don't know whether he will testify, but he would be available. Mr. HORTON. He is available now. Mr. BROOKS. I understand how available they are. I have had them before. Mr. HORTON. I have never heard of any OMB Director refusing to testify. Mr. BROOKS. They are a little slow about testifying on how they are operating the program concerning computer capabilities of the Congress, how they are expediting that, and how it is going to be coordinated with the executive so we can understand what they are doing. The OMB has been very slow about coming down and testifying on that, because I asked them to come testify. This is not the current incumbent. Mr. HORTON. Would Senate confirmation, in your opinion, result in a more rapid response? Mr. BROOKS. One half of that particular committee were Senators and they would have a little more influence on him, I would think. Mr. HORTON. I am still interested to hear from you how you would distinguish between those people who are close to the President who should not be confirmed and those that should be confirmed. Mr. BROOKS. When they have tremendous impact on the U.S. Government and its future and all of the agencies, I think there is no question but what the Director of the Office of Management and Budget should undoubtedly be confirmed by the Senate. He is much |