tion, a set of first steps. I would suggest that you take the 1986 compromise and consider-by legislation if necessary-extending its essentials to the Council on Competitiveness. I think you can do at least the following. The Council on Competitiveness, as I understand it, has its major contacts with the agencies and with OIRA through its permanent staff. I think you can require the permanent staff of the Council to reveal its written communications with OIRA and the agencies. And that is what I would suggest you focus on along with another primary feature of the 1986 compromise, which is revelation of conduit communications, sending along written communications and at least some notice of what oral ones have been.

If that were to occur, it would be in some ways less coverage than the 1986 compromise. It would leave out oral communications between the staff and OIRA. That would be controversial. It would leave out written communications (which I suspect are few) between the vice president and other cabinet level officials and the agencies, and it would leave out oral communications between the vice president or other cabinet officials and OIRA or the agencies. It is this latter that I think is the best candidate for executive privilege protection among the kinds of activities that we have been discussing.

So what I am suggesting is perhaps a first step to try to control the staff relationships of the Council with OIRA by sending into the sunshine their written interrelations with OIRA and the agencies. Let me say in concluding that as I view the activities of the Council, in a way it reminds me of something that my friend Jerry Mashaw at Yale has called "the law of conservation of administrative discretion." He says if you by law confine administrative discretion here, it will pop up over there. There is always an equal amount, and if you confine it someplace, it will try to find its way other places. I think the activities of the Council tend to illustrate that principle in action. Maybe it also illustrates that accommodation of these matters between the branches is likely to be a sport for the long-winded.

Thank you, Mr. Chairman.

Chairman GLENN. Thank you, professor.

It is my understanding Senator Levin has to leave shortly, and he would like to give his statement before we have our last witness, if you could hold Ms. Meyer.

OPENING STATEMENT OF SENATOR LEVIN

Senator LEVIN. Mr. Chairman, thank you for allowing me to do this, and I thank the witnesses, particularly our last witness, for this intervention. Mr. Chairman, it has been 10 years now, over 10 years, since President Reagan issued Executive Order 12291, which dramatically changed the rulemaking process in the executive branch. Prior to that executive order, regulatory review by an office of the president was conducted only on an ad hoc basis. With the advent of 12291, however, for the first time there was a formalized process for every proposed rule to be reviewed by the executive office of the president. From the time that executive order was issued, a number of us in Congress have been working to get the

OMB review process out into the open. We have proposed legislation, some of which, by the way, passed the Senate at various times, but none of which has been enacted into law.

In 1986, we were able to reach an agreement with the then Administrator of the Office of Information and Regulatory Affairs, OIRA, Wendy Gramm, who was the administrator, to adopt a number of specific disclosure procedures to increase public awareness of and participation in OIRA's review process. That 1986 memorandum was only supposed to be a beginning towards the development of strong public disclosure procedures. Unfortunately, it has turned out for the last five years to be an end as well. That 1986 agreement was made with the understanding that OIRA was the principal reviewer of rules for the executive office of the president. Although the vice president's Regulatory Relief Task Force was also in existence at that time, it was viewed as more of an appellate body for reviewing strong inter-agency disagreements about rules that could not be resolved through OIRA.

Now we have been hearing about the work of the Competitiveness Council, which is supposed to be President Bush's substitute for the Regulatory Relief Task Force. But it seems much more than that. Instead of just resolving interagency disputes over proposed rules, the Competitiveness Council appears to play a much more active and regular role in the review process. It appears that the Council, on its own, selects the rulemakings in which it wants to participate. It now says in letters to Senator Glenn and myself, that it has invited the public at large to contact it about any rulemaking. I doubt that the public at large knows that it has been invited.

I believe that the reality is that certain interests have a pipeline to the Competitiveness Council. By its own acknowledgement and in the testimony that we will hear today and some of which we have already heard, the Competitiveness Council has had a direct impact on a number of significant rules. Yet the work of the Competitiveness Council is not covered by even the minimum disclosure requirements of the 1986 agreement. So we have an additional problem now. Not only do we have disclosure procedures for OMB which are inadequate and were only supposed to be a starting point, we have another player, the major player when it chooses, in the regulatory review process for which we are starting from scratch in terms of public disclosure. And what is more, we in Congress have not, until now, been able to get the information on the work of the Competitiveness Council, much less to make it available to the public.

Mr. Chairman, with the arrival of the Competitiveness Council, I am afraid that we are heading back to square one on the issue of public disclosure, and I am not happy with or willing to do that on an issue of such importance to our administrative process and to democracy as a whole. So I am pleased that this Committee, under your leadership, Mr. Chairman, has begun an inquiry into this matter. I am committed, as you are, and other members of this Committee are, to bringing the regulatory review process out into the open where all Americans will have an equal and fair shot at being heard, where elected leaders who are reaching down to effect the regulatory process, can be held accountable for their actions.

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Regulatory review can be legitimate or illegitimate. I agree with Professor Bruff that there is a legitimate role or can be a legitimate role for executive regulatory review. But if it is hidden from public view so that people who are affected by the regulations do not get to express their views to the decision-makers, and if those decision-makers then cannot be held accountable because their decisions have not been made in public view, I believe that exercise of power is illegitimate. Now this may be a dry subject, but the Chairman is leading this Committee into a very significant area for democracy in America, and it goes to the basic gut issue of whether people whose lives are affected by regulations are going to have a chance to express their views to the people who are making decisions on those regulations, and to hold those people accountable for their decisions.

That is a very basic issue in democracy, and that is the issue that we are really focusing on here, and I commend you, Mr. Chairman, for again taking on a project which is not the most glamorous, and it is not going to be on page one of the newspapers, but is very critical to a vibrant democracy.

Chairman GLENN. Thank you, Senator Levin. Thank you very much.

Our last witness this morning is Katherine Meyer, of counsel, to Harmon, Curran, Gallagher and Spielberg here in Washington. Ms. Meyer is a former attorney with Public Citizen Litigation Group and has been involved in the regulatory review debate for some time. She is the plaintiff in a recent Federal District Court decision Meyer v. Bush that ruled that the Freedom of Information Act covers the Task Force on Regulatory Relief, whose functions have been taken over by the Council.

Ms. Meyer, we welcome you this morning, and look forward to your testimony.

TESTIMONY OF KATHERINE MEYER,1 OF COUNSEL, HARMON, CURRAN, GALLAGHER, SPIELBERG

MS. MEYER. Thank you very much, Mr. Chairman. Thank you for inviting me to testify.

As you indicated, I have been involved in this issue of Task Force, OMB, Council on Competitiveness interference in the regulatory review process for many years. My experience basically is based on my representation of a wide range of consumer, health, environmental, union, other groups, that in their efforts to convince Federal agencies to issue much needed health and safety regulations would time and again win the battle at the agency by demonstrating that such regulations were needed, but end up with nothing because of this super-structure that was created first under Executive Order 12291 by President Reagan and has subsequently been expanded.

And under that super-structure, as we all know, health and safety regulations were repeatedly either delayed, substantially diluted, or all together quashed by OMB and the Task Force on Regulatory Relief and now the Council on Competitiveness. Because of

1 The prepared statement of Ms. Meyer appears on page 135.

my experience and the experience of my colleagues as the lawyers who would represent these groups and see this pattern over and over again, we knew that the Task Force on Regulatory Relief, the predecessor to the Council on Competitiveness, had a verifiable record of interference with health and safety regulations. And so I in the spring of 1988 in conjunction with the election that was coming up, I decided that since Vice President Bush was then running for the presidency, that it might be of interest to the public at large to know and to factor into the public debate surrounding the presidential election in 1988 what exactly was Vice President Bush's role as head of the Task Force on Regulatory Relief on these important domestic issues. He had a record. We just needed to dig it out and let the public see it.

So I began compiling a report of Task Force and OMB interference with health and safety regulations. It was fairly easy to come up with examples by talking to not only my clients but other public interest groups of this pattern of OMB Task Force interference. That was not too difficult for matters that had occurred in the early 1980's because the Task Force in the beginning was very proud of its role and would go on public record speaking very proudly about how it had eliminated unnecessary regulations and how it was responsible for a particular regulation not going forward or being weakened.

So it was pretty easy to put together those examples. What I really wanted to do, in addition, to that was to find more recent examples, the later part between 1985 and 1988, to demonstrate to the American public that this was not something that had ended. This was a continuing process and a continuing problem. So I had the audacity to submit a Freedom of Information Act Request-this time I was my own client-to the Task Force and I asked for basically all documents and correspondence that the Task Force had either received or generated concerning regulations then under consideration at the Food and Drug Administration, the Occupational Safety and Health Administration, and the Environmental Protection Agency.

To make a long story short, I got responses from the legal counsel representing the Vice President and the Task Force which informed me that the Vice President is not subject to the Freedom of Information Act; I must direct my request to OMB. I was very familiar with the open government laws. I have also litigated many cases under those laws in Federal court, and knew what the definition of "agency" in the Freedom of Information Act was, and that, indeed, entities within the executive office of the President are expressly covered by the FOIA, and are only exempt from coverage under that statute if their sole function is to advise and assist the President.

So I knew that this position that was being taken by the Task Force legal counsel was erroneous. We filed a lawsuit in October of 1988 against the Vice President in his capacity as chairman of the Task Force and against the Task Force in an attempt to uncover the documents we were seeking. I mean basically what we wanted most of all-and this is why this executive privilege about the Task Force and now the Council on Competitiveness makes is so bogus because what we wanted most of all was to demonstrate the input

from industry outsiders in the regulatory process. That kind of information is not covered by executive privilege. The executive privilege is designed to protect internal agency deliberations to ensure that those deliberations are frank and candid on policy matters, and the Supreme Court as long ago as 1975 recognized that under the Freedom of Information Act agencies, including OMB and any other executive agency, may withhold information if it is an internal, pre-decisional, deliberative matter.

What the agencies cannot withhold, which the Supreme Court has made clear over and over again, is factual information-factual, scientific information, and other technical information. That is not covered by the executive privilege because that has nothing to do with furthering candid, frank, deliberative discussion among agency personnel. That is fact. It is either a carcinogen or it is not a carcinogen. There is no two ways about that. Maybe people would differ with me on that. But that kind of factual information is not exempt from disclosure under an executive privilege claim.

In addition, any information that comes from outside of the government, from industry representatives, is not covered by the executive privilege. So this claim that the Task Force and now the Council on Competitiveness has to protect the executive privilege by not making documents available to this Committee or to the public at large under the Freedom of Information Act is a sham. It simply does not apply. The executive privilege more than amply protects any legitimate claim under that doctrine. What we wanted to get most of all was, again, this factual information that was relied on by the Task Force and OMB as the basis for instructing essentially the agencies to change their decisions on rules and to show the trail, the input, the unfair influence of the industry in these decisions.

Unfortunately, Judge Joyce Green who handled the case did not decide our Freedom of Information Act case for a number of years. As anyone who practices litigation in the Federal courts in this circuit knows, and this is probably true in other circuits as well, the dockets are very crowded, mostly with criminal cases these days, certainly at the trial level, and so it takes forever to get decisions out of the judges. But in an opinion that she issued on September 30, very recently, Joyce Green held that the Task Force is an "agency" subject to the FOIA. She held that clearly the sole function test, which by the way had been adopted by the Supreme Court in the Kissinger v. Reporters Committee for Freedom of the Press decision in 1980, clearly demonstrated that the Task Force did not fall under that standard and was subject to the act because the Task Force by its own admission, and this applies with equal force to the Council on Competitiveness, performs functions that fall far outside advising and assisting the President.

The Task Force as set up by Executive Order 12291 and the Council, as far as we can tell from these memos and press releases that have been circulated around town, exercises supervisory role over OMB under Executive Order 12291 and 12498 and the Paperwork Reduction Act and has final say, and we know this also from the case studies that have been discussed here today, often in what is the content of regulations, whether or not the regulations are going to come out at all, the timing for release of the regulations,

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