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Chairman IIOLIFIELD. Several Members of Congress have asked to be heard on the legislation before us today. As is customary, we will hear them first. Then we will hear the Government and other witnesses. The Honorable Roy L. Ash, Director of the Office of Management and Budget, will be the principal Government witness.

I will yield now to my colleague, Mr. Horton, for a statement which he wishes to make.

Mr. HORTON. Thank you, Mr. Chairman.

As you noted, these hearings today are being held in response to a widespread feeling both in the Congress and across the Nation that there is growing imbalance of power between the executive and legislative branches. Our Constitution calls for three strong and separate branches of government cooperating to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.” The Congress must not fail to live up to its share of these responsibilities.

I welcome this opportunity to review legislative proposals requiring Senate confirmation of the OMB Director because they are part of the congressional response to this concern. I personally have addressed the problem differently, by introducing the so-called Fiscal Responsibility Act which would establish spending ceilings, provide a means to avoid impoundments, and change the fiscal year to coincide with the calendar year. I hope the Congress will review my legislation and all other proposals designed to strengthen the Congress, and ultimately the effectiveness of the Federal Government.

At this point, I must admit to some concern about the effects of requiring Senate confirmation of the OMB Director. In the first place, I am not sure that this legislation would really strengthen the Congress.

Second, I think there are some good reasons why the Congress should recognize the importance of allowing a President to have personal staff who do not have to stand for Senate confirmation. This is in keeping with the concept of a separation of powers; and I think would contribute to more orderly relations between the executive and legislative branches.

Third, I am concerned that requiring Senate confirmation of the OMB Director might have some undesirable consequences. We should be sure that any advantages of this requirement are not outweighed by potential problems.

Fourth, I do not see now how we could require the incumbent OMB Director to stand for confirmation without transgressing the constitutional prerogatives of the President to remove executive officers, except when Congress impeaches and convicts an officer of wrongdoing.

And, finally, I do not think there has been adequate study and justification of the provision in the Senate bill establishing a term of office for the OMB Director to coincide with the term of the President. I look forward to addressing these issues and concerns of mine in these hearings.

Chairman HOLIFIELD. Mr. Brooks, the ranking member of our Committee on Government Operations, will be recognized as the first witness.



Mr. BROOKS. Mr. Chairman, I have submitted copies of my statement to the members of the committee, and I appreciate this opportunity to appear before the Subcommittee on Legislation and Military Operations to testify on my bill, H.R. 3932, that would require Senate confirmation of the Director and Deputy Director of the Office of Management and Budget.

On February 7, I introduced H.R. 3932, together with the distinguished chairman of the full committee and this subcommittee, Mr. Holifield, and 19 other members of the Government Operations Committee. The provisions and purpose of this legislation are simple; however, underlying it is an important constitutional principle the balance of powers between the three branches of Government.

One classic means provided in the Constitution for balancing power between the executive, legislative and judicial branches, requires the participation of Congress in the appointment of officers of the United States. The only exception to this occurs when Congress volunta rily by law relinquishes its role to participate in the confirmation of in ferior officers.

The purpose of this legislation is to reinstate the constitutional right, obligation, and responsibility of the Congress to evaluate the qualifications of the two top officers in what has become possibly the most powerful office in the executive branch, second only to the President himself.

When the Bureau of the Budget--the forerunner of the Office of Management and Budget-was created in 1921, it was made part of the Treasury Department and was designed to serve as an institutional aid to the President in coordinating activities and managing the execution of programs and policies.

Congress did not intend for that Bureau to occupy a policymaking role in the government and, consequently, saw no need to specifically require confirmation by the Senate of its chief executive officers. However, the powers of this office have been phenomenally expanded, principally by executive order, evolving the office into a super policymaking department with enormous authority over all of the activities of the Federal Government.

As currently administered, this office with a staff of some 700— determines what Federal Government programs will be funded, what programs will be cut, and what programs will be abolished. Every agency in the government must submit its budget requirements to OMB and they can ask from Congress only the amount approved by OMB, OMB refuses to divulge the information as to the funding requirements the agencies themselves say they need to adequately carry out programs the Congress has enacted. Furthermore, no department or agency within the executive branch can communicate to the Congress its position on proposed or pending legislation without first obtaining approval from the Office of Management and Budget.

The Director and Deputy Director of the Office of Management and Budget can no longer be considered to be the kind of officers whom the Congress should permit to be appointed solely by the President. Logic requires that Congress have a part in evaluating the qualifications of the people who are to occupy these important positions.

My bill, H.R. 3932, would provide that the persons selected by the President to hold the positions of Director and Deputy Director of the Office of Management and Budget would be required to pass Senate confirmation before they can take office. This legislation also provides that the Director and Deputy Director shall be appointed for a 4-year term that will be concurrent with the term of office of the President.

Any individual appointed to fill a vacancy in these offices before the expiration of the term for which his predecessor was appointed will be appointed for the remainder of the original term. I want to stress that this legislation specifically provides that it will in no way impair the power of the President to remove the occupants of the offices of Director and Deputy Director of the Office of Management and Budget.

My bill contains essentially the same language as S. 518, which passed the Senate by an overwhelming majority on February 6, 1973. The only differences are some technical changes to make it clear that the terms of office of the Director and Deputy Director of OMB are to be concurrent with the President's term.

Mr. Chairman, by approving this legislation, the Congress will make a big move in the direction of restoring some balance of power to the three branches of government and in maintaining Congress' constitutional role in the formulation of national policy. I urge this Committee to act favorably and promptly upon this legislation to get it to the House floor for early consideration.

Chairman HOLIFIELD. I thank the gentleman from Texas, Mr. Brooks, for his statement.

The Chair will request the Members to abide by the 5-minute rule in order that every Member may be given a chance to interrogate the various witnesses that appear before us.

Mr. Horton.

Mr. HORTON. Mr. Chairman, I want to thank the gentleman for coming before the committee and speaking on this vital subject.

Mr. Brooks, how do you feel that this legislation would strengthen the Congress?

Mr. BROOKS. To my distinguished friend from New York, Mr. Horton, I would say this would give the Congress an opportunity to evaluate and have some slight input, just by a public examination of his background and character, his attitudes, and so forth. It would give Congress that opportunity for whomever was appointed by the President.

I don't believe that it will give the Congress absolute authority to make the OMB any more responsive, really, to Congress, but it might be more responsive to the people.

Mr. HORTON. I noticed in your testimony, you used the word, “inferior"

Mr. BROOKS. The word, what?
Mr. HORTON. "Inferior.'
Mr. BROOKS. Yes.
Mr. HoRTon. On page 1.

Mr. Brooks. The word "inferior" comes from the exact language of the United States Constitution

Mr. HORTON. Right.
Mr. Brooks (continuing). And that is the reason.

Mr. HORTON. I think that word has been misinterpreted. I think it is a word of art. It doesn't mean “inferior” in the sense we commonly think of “inferior," as I understand it. According to the Collins case which was decided in 1878:

"The word 'inferior' is not here used in the sense of petty or unimportant, but it means subordinate or inferior to those officers in whom respectively the power of appointment may be vested”-Collins v. VI.S., 14C. Cl. 508, 574.

I think that is an important distinction to be made in connection with this particular office. In other words, this officer, the Director of OMB, is inferior to the President, so to speak. He is the direct appointee of the President.

Joseph P. Harris, in “The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by the United States Senate," which was published in 1953, on page 391, says:

Generally speaking, most appointments of the President are subject to confirmation by the Senate. There are, however, a number of justifiable exceptions. In the Budget and Accounting Act of 1921, for example, it was purposely provided that the Director of the Bureau of the Budget should be appointed by the President alone and that his appointment should not be subject to the approval of the Senate. It was felt that the Director should be the President's man and that the Senate should have no voice in his selection. Similarly, the Hoover Commission recommended that the heads of all of the staff agencies in the Executive Office of the President be exempted from senatorial confirmation. This is probably wise in view of the intimate relationship between them and the President, and the fact that the President must have entire confidence in, and the undivided loyalty of, those who are his immediate assistants. The President has a right to choose his own advisers and chief assistants without the supervision of the Senate.

Do you have any comment to make with regard to this quote?

Mr. BROOKS. Yes. I read the detailed views of the Attorney General's Office without great relish. But I referred to the Constitution itself, and I would say I believe these long decisions that they recite have somewhat distorted the rather obvious intention of the Constitution, in my judgment, and I can read it, in just two paragraphs. It is pretty simple. It says, very simply:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officials of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

I think it is a specious argument. Congress has full authority to do it, no question about it.

Mr. Horton. Do you feel the President should be allowed top staff appointments without senatorial confirmation?

Mr. BROOKS. He has quite a staff within the White House Executive Office. He has a large number of people, a tremendous personal staff, considerably larger than the Presidents I have known in my lifetime. I think that this job of Director of the OMB is one which obviously has much importance, not just to the President personally, but to every agency, every department in this Government.

This is not an inferior job. This is a No. 1 position in the United States.

Mr. Horton. You keep using that word,“inferior” in the same sense I said the Court said it should not be used.

Mr. BROOKS. That is correct.

Mr. Horton. Yes. If you think that there are some that should be free from confirmation, how do you distinguish between those who should be confirmed and those who should not be confirmed?

Mr. BROOKS. Well, you can make the decision as the cases and as the facts justify, or merit. In this case, I think we have an excellent example of a job of such importance to the Nation that the Senate should have some input into it and should approve whomever they name. They might well approve the current occupant.

Chairman HOLIFIELD. The Chair will now recognize the gentleman from New York, Mr. Rosenthal.

Mr. ROSENTHAL. Thank you very much, Mr. Chairman. I sense, Mr. Brooks, from the reading of both your testimony and Mr. Ash's testimony that his perception of the role of the Director of OMB—and he says in his statement-is in the service of the President. He says it is a personal role in the service of the President. You, apparently, as most of us, see it in somewhat different light. Isn't that correct?

Mr. BROOKS. Yes. We would like to think that the man who approves what all of these budgets are going to be has some relation, some slight rapport with the people of this country, with the agencies and departments. The facts are they must check with this individual and he acts and serves as a representative for the President in that capacity. But it is of such importance that, like Cabinet officers, it should be confirmed by a branch of this Congress, the U.S. Senate.

Mr. ROSENTHAL. In a sense, his role is far more important than any one or almost all of the Cabinet offices put together, is that correct?

Mr. Brooks. He approves their recommendations before they can be submitted to the Congress. He helps to massage their recommendations before he submits them to the President and makes a report to the President.

I know how this operates. This has been an increasingly important job in the last 20 years. Under President Eisenhower, it was a pretty important job. It got increasingly more so, and now is of paramount importance.

Mr. ROSENTHAL. Let me get your reaction, too, on another point Mr. Ash makes. He says, in support of his argument in opposition to this legislation, that the Director and Deputy Director of OMB are always available to both the Senate and the House to testify in explaining the budget, and so forth. How do you respond to that argument?

Mr. Brooks. Well, being available to testify and to respond doesn't mean very much. Just to testify and say what they have agreed to is not particularly helpful. They put out a printed budget. You can read it, you can work on it for weeks, but unless they will tell you the factors that go into the decisions that made up that budget-if they

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