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Retaining the power of appointment of the Attorney General in a currently elected President has the effect of focusing ultimate political responsibility, in the eyes of the electorate, upon the President himself. This responsibility would be avoided by separating the operations of the Justice Department from the Executive Branch. In addition, under the proposed bill, the likely propensity of an Attorney General to act so as to make himself eligible for reappointment, regardless of the outcome of the most current national election, would encourage blandness in the office and would tend to prevent the Justice Department's taking positions which might be controversial, even though they might be fully justified as a matter of law or policy.

In summary, Senate Bill 2803 paints with far too broad a brush. It is not direct political control by the executive or indirect political influence by the electorate from which the Department of Justice should be insulated. It is rather improper political control for purely partisan or personal political ends by any branch of government which is to be condemned. A continued study of ways in which more effective preventive measures might be implemented for the future is both necessary and desirable. The present bill, however, runs counter to the basic assumptions upon which our national government is structured and represents an inappropriate solution to the much narrower problem that the bill appears intended to address.

W. HAROLD BIGHAM,

Professor of Law.

ROBERT D. KAMENSHINE,

Professor of Law.

ROBERT L. KNAUSS,

Professor of Law and Dean.

THOMAS R. McCOY,

Associate Professor of Law and Associate Dean.

HAROLD G. MAIER,

Professor of Law and Director of Transnational Legal Studies.

PAUL H. SANDERS,

Professor of Law.

STATEMENT OF CONGRESSMAN JAMES V. STANTON

Mr. Chairman, I appreciate this opportunity to submit a statement to your distinguished Subcommittee, and I of course regret the fact that my own heavy schedule in the House prevented me from appearing as a witness when you held public hearings.

As it happens, I disagree respectfully with the proposals contained in S. 2803 and S. 2978, and I offer as an alternative, for your consideration, a concept embodied in the bill I have introduced in the House, H.R. 10218. This legislation in turn, I might add, was inspired by a book written before Watergate by Sanford Watzman, my administrative assistant and a former newspaperman, entitled "Conflict of Interest."

While I disagree with the two Senate bills, I do of course believe strongly that legislation is needed to restore the people's confidence in their government, and to assure continuing confidence. I submit that, if we really want to accomplish this, we ought to set our sights very high and enact legislation that is workable and far-reaching-that will be perceived by the public as part of a sincere and well-structured program that attempts to preclude future Watergates.

When I say "set our sights high," I mean we ought to aim at creating an institutional framework in government not merely for regulation of political campaign financing and prevention of strictly Watergate-type crimes, but also for dealing comprehensively with conflicts of interest and other ethical problems in all three branches of government. We should not lose sight of the fact that, while the executive branch is currently under fire, Congress and the judiciary have been at the center of earlier scandals in our history, in fact, recently. From the vantage of any citizen, all three branches are part of a single governmental establishment, and he will not necessarily differentiate when anger seizes him, disillusionment sets in and cynicism becomes rooted.

I suggest, then, that we contemplate setting up a new and different kind of agency, a permanent one, with a capability of investigations and prosecutionswith built-in machinery that is self-starting, self-propelled, and free-wheeling, having no place in its driver's seat for the politicians who are being policed. Our legislation would assign to this agency clearly conferring on it an institutional status as being the focal point in government for dealing with all sorts of ethical problems in the three branches. For, as I have pointed out, the next major scandal in government-as have some earlier ones-might resolve around a conflict-of-interest situation, rather than election campaign financing. Therefore we ought to act preemptively now, if we can.

But the problem that confronts us immediately as we contemplate such an agency is: Who will be in charge of it? The Constitution, at first glance, affords us no clue. In fact, it seems to stand in the way, since it assures separate spheres of influence to the President, the members of Congress and judges. Under the doctrine of separation of powers, a system of ethical surveillance has evolved which, by and large, finds each branch looking after itself. We've seen instances when one branch intrudes on another's territory, self-righteously or cynically prescribing standards that it refuses to adopt for itself. But in the main, there has been a live-and-let-live policy, each branch permitting the other to draft general rules of conduct for its personnel and to take primary responsibility for enforcing or not enforcing them. The result has been not only disparity between the branches but internal disorder as well in all three.

In the judiciary, conflict-of-interest rules are promulgated by a Judicial Conference with dubious enforcement powers; some judges of the lower courts reject its authority, and the Conference itself acknowledges it has no jurisdiction over the nine Justices of the Supreme Court. In Congress, there is one code for the Senate and another for the House, each relying heavily on the "honor” system for enforcement. In the Executive Branch, the situation hasn't changed much since the New York Bar Association reviewed it in 1960. Its report concluded: "Regardless of the administration in office, the Presidency has not provided central leadership for the executive branch as a whole . . . Administration of conflict-of-interest restraints can be observed only on a fragmented basis-department by department, agency by agency."

One answer to this kind of dilemma in government is to divert responsibility by setting up a board or commission-a fourth entity largely independent of the three branches, doing what they seem unable to do. The board's members are appointed to rather long fixed terms, ostensibly freeing them from any fear of retaliation on account of their decisions. They might be politicians themselves, but their roughly coordinate status with the President, congressmen, and judges somehow is supposed to assure their impartiality and spur them to action.

The trouble with this device is that the new entity can quickly become a non-entity by fading into the bureaucratic jungle. The board has low visibility to begin with, since its members are appointees who lack a popular base in the electorate. In time, as Ralph Nader has pointed out with respect to the regulatory agencies, the so-called independent agency tends to forget the public interest and to see its mission as servicing the groups it's supposed to regulate. When this happens, the voters don't know where to turn. They blame the President or Congress, only to be reminded by these officials that responsibility has been vested in a panel that is now beyond their reach.

A variation of the board concept might be to set up a panel composed of representatives from the Executive, Legislative and Judicial branches. For example, the President could appoint a couple of Cabinet members, the Speaker of the House could name some of the luminaries from his province, and the Chief Justice could select a few judges to share power with them. In this way, operation of the agency would become a joint responsibility of the three branches. The board members, being better known to the people, presumably would be conspicuous and responsive to public opinion.

However, I don't think this would work either because in essence it would be a replication of the system we already have. The three branches would continue to participate in policing themselves-by proxy. On such a board, there would be three distinct factions, each perceiving a loyalty to its own constituency in the Legislative, Executive, and Judicial domains. Under such

circumstances, there are more likely to be compromises in the triumvirate than hard decisions.

Another possibility would be to select one of the three branches to run the agency on behalf of itself and the other two. Obviously, though, it couldn't be the judiciary, which doesn't do well when it ventures into the enforcement business. Having no muscle of its own, it would have to call on the Executive Branch to enforce its edicts. And the judges, in the end, would wind up reviewing the fairness of what they themselves had decreed.

To put Congress in charge would be another mistake. Congress has no enforcement powers, either. Besides, it's too distended in structure-and too frequently immobilized by partisan squabbling over ethics. In the Bobby Baker case, for example, politics precluded a thorough investigation. The lawmakers also have certain inhibitions that may disable them. As the Pulitzer-Prize winning journalist, Clark Mollenhoff, has observed, they're vulnerable to White House pressure. During the time of Lyndon Johnson, Mollenhoff wrote: “Congressmen and Senators are becoming increasingly reluctant to investigate, or even to speak on the floor, when to do so would offend an administration that controls the placement of multimillion-dollar contracts, the location of new facilities, and other largesse . . . It is difficult to imagine circumstances under which an extremely clever President could use the power over military contracts, social programs and political appointments to bring an end to the independent congressional investigation as we have known it."

Granting Congress' unfitness to run the agency directly, I suppose it might be said it could do so indirectly through the Comptroller, an official whose integrity has never been questioned. Senators already file their confidential financial statements with him. In many of the current proposals for reform, he would be assigned still more responsibility. As head of Congress' General Accounting Office, the Comptroller General has wide latitude to investigate government agencies. He can well afford to ignore the political consequences because, next to the judges, he holds a post more secure than any in the federal system. He serves a fifteen-year term.

The catch is that he doesn't investigate his bosses in Congress. Besides, how many voters ever heard of the estimable Elmer B. Staats, the present Comptroller General? Could there be widespread public confidence in an official-an ethics "czar" if he were made one-who has so little standing with rankand-file citizens? It wasn't the people who put him in office, and they would have no way of removing him should they ever, for some reason, want to. Mr. Chairman, I appear to be posing a dilemma here. If we refuse to let the politicians police themselves and if, in addition, we refuse to entrust this task to the usual nondescript "independent" agency, then to whom do we turn? I submit that the answer lies in a new concept-establishing an agency that combines true independence with visibility and accountability, structuring the agency in a way that ties it in-perceptibly-with the highest level of government. We can accomplish this by putting the agency under the control of a board of five members, with the President of the United States serving as chairman and with the four other members, appointed by the President and confirmed by the Senate, holding life tenure, as federal judges do. H.R. 10218 spells out how the President, or a surrogate designated by him as his alter ego on the board, would interact with the other board members, under a system of checks and balances that would keep both in line-yet out front where the people can see them.

I realize, of course, that in this era of Watergate it would seem to be insensitive, and lacking wisdom, to repose such seeming authority in the President-authority not only to apparently be his own policeman. but also to police Members of Congress. As I will show in a few moments, however, his real authority would be carefully constricted. But first I would like to cite some reasons for putting the President. nominally, in charge at the board. The main reason for doing this is that it provides a focal point for responsibility and, in doing so, it follows and preserves the lines of authority set forth in the Constitution. The President is, after all, the government's chief enforcement officer and, historically, he has provided moral leadership as well. With Watergate behind us, we might hope for a return to this state of affairs. The fact that the board's actions would be taken in the President's name would preclude diffusion of authority and responsibility, as seen from the vantage

point of the voters, and it would provide them with a proper-and effective— point of reference. Also, the President's seat at the helm of the board would give this agency prestige and clout, keeping it in the public eye.

Besides having the President himself as chairman, the board would be distinguishable from other so-called independent agencies in that its four regular members would serve for life, subject to removal only by impeachment. Lifetime tenure would assure true independence for the board members (who would be inherited, as it were, by any new President on his inaugural). There would be no reason for them to feel inhibited about prodding the President and seeing to it that he does his job. They would not be as vulnerable as members of other government boards, who are appointed to fixed terms and who could be confronted with the need to make particularly sensitive decisions on the brink of the expiration of their terms. In such cases the member sometimes votes, or is suspected of voting, in a way to best assure his reappointment by the President. Having no concern about who is elected President, or who is elected or re-elected to Congress, since the board members' jobs would not depend on such decisions by the electorate, the board would have maximum and assured freedom from outside influence.

H.R. 10218 would further enhance the actual power of the board vis-a-vis the largely nominal authority of the President. The bill says that no more than two of the appointed members may belong to the same political party. There is a further requirement that at least four members constitute a quorum. This would prevent what might at some time be a faction of the board, acting with or without Presidential leadership, from making important decisions at a rump session. Moreover, the bill asserts that the President may vote as a member of the board only under two sets of circumstances-first, to join in a unanimous decision of the board or, second, to break a tie. Should it ever become necessary for the President to cast a tie-breaking vote, a great deal of public attention would be focussed on him and he would have to answer for his action. But in most cases, as is evident, the President would have little actual control because as he would not be participating in board actions as a voting member, even though the board would have the advantage of functioning in his name. It is at this level where we should want the board to operate, because nothing is so vital to the functioning of our democracy than assuring its integrity.

H.R. 10218 confers extraordinary powers on the board. It would have authority to issue subpoenas, conduct hearings, seek injunctions in civil proceedings and to go to the grand jury and then to court to prosecute its own cases in criminal proceedings. In other words, the board would operate independently of the President's Justice Department. As you know, Mr. Chairman, no agency set up to police the three branches could have true independence, or be effec tive, unless it were able not only to investigate complaints, and to launch investigations on its own initiative, but also to follow through without depending on the usual enforcement agencies of government which might be under the influence of someone about to be prosecuted. To this end, the board would of course have its own staff, headed by an executive director and general counsel, appointed by and serving at the pleasure of the board, plus a cadre of professional civil servants.

What would be the jurisdiction of this board, Mr. Chairman? One of its primary duties would be implementation and enforcement of campaign financing legislation acting in the role of an elections commission as contemplated by S. 372 and S. 3044, the two major pieces of reform legislation that have already been approved by the Senate and now are pending in the House.

The board could also make a study of how it might "monitor and review fund-raising and other financial activities of persons holding public office." If legislation resulted from such a study, it would put the board in business between elections, as well as during elections. It is no secret, Mr. Chairman, that the ordinary expenses of holding public office-I am thinking of Congress particularly-are not adequately covered by existing governmental expense allowances. For example, many of us find it necessary to make many more trips home per year than the government reimburses us for. To this end, some Members maintain a special fund. I happen to think that the public ought to know where the money for these funds come from, and how it is spent-since we are speaking here, after all, about what might properly be seen as official

activities of the Congressman. Perhaps such a study would pave the way for our adopting more realistic expense allowances for ourselves and other governmental officials; perhaps it would result in legislation calling merely for a public accounting of such funds.

The board also would take jurisdiction, as I have indicated, over conflict-ofinterest problems. In fairness to public officials in all three branches, Mr. Chairman, isn't there a single, clear standard that we can adopt to identify conflicts of interest when they occur, and to enact a law that will prevent them from occurring? Several solutions have been suggested, but each has failings as well. Some of these are disclosure, divestiture, trusteeships, abstention from participation in certain government actions when one's financial interests might appear to be at stake, and so forth. I propose in H.R. 10218,. Mr. Chairman, to have the board study this problem and then recommend to Congress appropriate legislation that would establish a uniform governmentwide test of what constitutes an illegal conflict of interest, and a single set of rules for preventing and erasing such conflicts in all three branches. It would become the responsibility of the board to implement, administer and enforce this legislation.

The board members could function in still another important capacity. They could serve the Government as a permanent panel of ethical advisers. For there are other aspects of conflict of interest besides those I've touched on so far. The board could make investigations in these areas, conduct hearings, and through the President, recommend new legislation to Congress.

For example, one problem is the government regulator who winds up working for the company he has been regulating. Was he given the job as a payoff? Should his new position cast doubt on decisions he might have made in favor of the company while he was on the government payroll? On the other hand, since he has expertise in a field valued by the company, and since he had served the government industriously until retirement age, is it fair to prohibit this former public employee from capitalizing on the knowledge he had acquired honestly?

How widespread is this problem, anyway? A study of the Food and Drug Administration made by the staff of the Senate Select Committee on Small Business revealed that the agency had become a steppingstone into the pharmaceutical industry for at least twenty-four of its top officials in 1966, 1967, and 1968. Senator William Proxmire of Wisconsin took a sighting in 1969 on the hundred corporate giants doing the most business with the Pentagon. He counted 2,072 retired military officers of high rank on the payrolls of these war contractors-three times the number that had been working for the top hundred ten years earlier. Proxmire told the Senate: "This matter is particularly dangerous in a situation where only 11.5% of military contracts are awarded on a formally advertised competitive bids basis . . . when almost . . . all military contracts are negotiated with only one, or one or two, contractors. There is a subtle or unconscious temptation to the officer still on active duty. After all, he can see that over 2,000 of his fellow officers work for the big companies. How hard a bargain does he drive with them when he is one or two years away from retirement?"

Another problem is private, off-the-record contracts between government officials. A congressman might drop a word to a friend in the Internal Revenue Service, asking him to deal gently with a taxpayer in his district. Or he might whisper something to a Pentagon functionary who is about to award a lucrative contract. For example, Air Force Secretary Eugene M. Zuckert heard on the QT from at least one dozen members of Congress during the competition for the TFX airplane contract. Such contacts are referred to by lawyers as "ex parte communications." The popular pejorative is "the fix." In the Zuckert case, were any of the lawmakers representing private interests, or were all of them trying to win industry for their districts and jobs for their constituents? Are the voters back. home best represented by a soft-shoeing congressman, if that's the best way to get things done? Or should all such contracts be made a matter of public record?

Still another problem is the profusion of federal advisory committees, boards, commissions, councils, conferences, panels, and task forces. Many are composed of persons outside the government who advise government regulators exactly in those areas of economic activity where they have interests at

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