The purpose of the provision is to "clarify the right of the duly authorized committees of Congress to obtain access to information in the possession of these agencies." There have been some recent incidents in which Congress has been unable to get documents from Commissions because they have been transferred to the Executive Branch. Under the Freedom of Information Act Members of Congress have all the rights of "any person." Most importantly, Subsection (c) provides that nothing in the Act is authority to withhold information from Congress." Any withholding of documents from Congress in the carrying out of their functions must be justified under the doctrine of executive privilege. Since the regulatory Commissions are creatures of Congress it is highly questionable whether the privilege could be used by a Commission to withhold documents from Congress. Thus the effect of the bill on documents under the control of a Commission is to require submission in two days. In certain situations that may be burdensome. If the Commission were to transfer a document, it is required, if feasible, to copy it. What is feasible is unclear. Does it refer only to a quantity of documents that would be prohibitively expensive? The real problem is how this provision for conditional transfers meshes with the doctrine of executive privilege. Executive privilege is an undefined doctrine that is partly constitutional and partly common law. Presidents have often withheld information from Congress and have always prevailed although no situation has been judicially determined. A presidential finding of public interest is generally not even questioned by courts. Yet executive privilege asserted by Department heads as claimed by the Department of Justice is a different matter. The courts have jurisdiction to determine the scope of the executive privilege doctrine.10 The legislation thus would provide a Congressional definition of executive privilege which would only be limited by its constitutional dimensions. It would thus provide the Congress with significant leverage in obtaining documents. VI. AUTHORIZATION OF APPROPRIATIONS (H.R. 340) H.R. 340 authorizes maximum appropriation amounts for fiscal years 1973, 1974 and 1975. For future years, the agency must return for further authorization of appropriations. The intent of the legislation" is to spawn a three-year cycle of authorization of funds. After fiscal year 1975 SEC would have to return for new authority and the relevant Committee could hold hearings to study the SEC every three years. Representative Broyhill sees this process as enabling Congress to assess the performance of the agency, the way their authority is exercised, and the directions they are moving in issuing regulations. Under present procedures these agencies present their budget requests directly to the House Appropriations Committee. The Committees with legislative authority and assumed expertise seldom take the opportunity to review their operations unless they seek new legislation. VII. CONCLUSION Earlier I have referred to arguments concerning the proper Constitutional and legal status of the so-called independent regulatory commissions. In that connection, I have noted the legislative history leading to the establishment of such agencies and the expressed determination of the Congress that they be established outside and independent of the Executive Branch. Also, I have noted that over the years following the establishment of such agencies, Congressional enactments, Congressional abdication and mere routinized practices, step-bystep and from time-to-time, have changed the status of these agencies from that of independence to that of considerable and increasing influence and control of these agencies by the Executive Branch. What for the future? Is it the will and determination of Congress to reverse this trend and restore these agencies to the status of independence originally conceived for them? It would seem from the pending legislative proposals, many of which are now under consideration by you, the answer to that question is in the affirmative. 8 Letter of Senator Moss introducing H.R. 4036. 5 U.S.C. § 552 (c). 10 U.S. v. Reynolds, 345 U.S. 1 (1953). See Broyhill's remarks in introducing H.R. 17134, 92d Cong., 2d sess., which would apply to all the independent regulatory agencies, Congressional Record, H10018, Oct. 13, It is my conclusion that H.R. 5050 would go a long way in that direction with respect to the Securities and Exchange Commission, so would H.R. 4036, H.R. 5965 and H.R. 6962 with respect to various other regulatory agencies. Previously in this statement I have discussed in detail how some of these legislative proposals would do much of that. With some minor changes in the pending legislative proposals Congress can make its objective clearer and its achievement more complete and effective. First, I refer to the provision in the various bills which would remove from the President the authority and power to appoint Chairmen of these agencies to serve at his pleasure. I do not think that the provision as written would achieve and make effective the purpose and objectives you have stated. True, while the provision would be effective in removing from the President the power and authority to appoint Chairmen to serve at his pleasure, it would merely transfer over to such Chairmen, without recourse for recall by either the President or the Congress, the authority and power over personnel patronage and the day-to-day operations of the agency including the conduct of quasi-legislative investigations without consultation or an agreement with other members of such agencies. A simple amendment which would provide that appointment of personnel and management of the day-to-day operations of the agencies be under the control and in the hands of an executive officer in each agency and that appointment and recall of him be placed within the authority, power and control of the members of the agencies would seem to me to be the preferable course to accomplish the independence of the agencies you suggest you want. Also, it is suggested that the bills should be amended to restore to the members of these various agencies the authority and power, once exercised by them, in compelling witnesses to attend and testify in their proceedings. You will recall I noted that the Crime Control Act of 1970 stripped these agencies of that unqualified authority and power and transferred it to the Attorney General. This is included in the authority and power to determine whether to approve the appearance of witnesses on the basis of a further determination as to whether immunity should be granted reluctant witnesses. Previously, a Section of the Federal Trade Commission Act (a similar provision appeared in acts creating other regulatory agencies) provided: "No person shall be excused from attending and testifying or from producing documentary evidence before the commission or in obedience to the subpoena of the commission on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it: Provided, That no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying." Some of the bills we have been discussing would provide for reducing the restrictive impact of the Federal Reports Act of 1942 on the operations of various independent agencies. However, I do not believe that the proposed provisions are anyway near sufficient to accomplish the objective you have stated. It is my view that the Federal Reports Act of 1942 should be amended to make it clear that it has no application to the operation of these independent agencies in the conduct of their law enforcement activities or in the conduct of quasilegislative investigations which would serve as the bases for gathering information to be submitted to the Congress. I trust that these comments and suggestions will prove to be of some interest and of value to you and the Country in your consideration of this very important problem. In closing, allow me to repeat that I appreciate very much your interest in having my views regarding the provisions of these legislative proposals now pending before you for your consideration. Thank you. Mr. Moss. Commissioner MacIntyre, as always, I find your testimony to be most constructive and highly instructive to me, and I think it has been to the other members of the committee. In H.R. 4036, there is the language: Clearance by Office of Management and Budget of reports and forms not required. Section 3509 of title 44, U.S. Code, is amended (1) by striking out "a Federal agency" and inserting in lieu thereof "(a) A Federal agency (other than an independent regulatory agency)"; and (2) by adding at the end thereof the following new subsection: (b) an independent regulatory agency may not conduct or sponsor the collection of information upon identical items, from ten or more persons, other than Federal employees, unless in advance of adoption or revision of any forms to be used in such collection the agency invites comment from the Director of the Office of Management and Budget. For purposes of this section, the term "independent regulatory agency" has the same meaning as such term has under section 2 of the Independent Regulatory Agencies Act." ? In your opinion would that correct the Federal Reports Act of 1942, which is the section referred to there, in the manner you feel necessary Mr. MACINTYRE. I think it goes a long ways. I would, however, suggest that it be made clear that you need not even get comment or consultation for enforcement activities or, for that matter, for the conduct of quasi-legislative investigations with an idea of gathering information to be submitted to the Congress. If you are going to make an economic investigation for the information of the Commission, yes, I would depend on the section you have for the purpose you indicate. Mr. Moss. Mr. Eckhardt? Mr. ECKHARDT. Mr. Commissioner, only yesterday the Solicitor General referred to some cases in which certiorari was sought by the Federal Trade Commission. He stated there that in the case of the Federal Trade Commission the Solicitor General was requested to file petitions in 28 cases. He did so in 18 and declined to do so in 10. The Court granted 14 of the 18 petitions and the Commission prevailed in all of those. I think this is over a 10-year period. I wonder how difficult it would be for you to supply us with references to those cases? Mr. MACINTYRE. Well, I am sure the Federal Trade Commission would be happy to supply those to you. I can't, but a simple written request either to the Federal Trade Commission Mr. Moss. If the gentleman would like, the Chair will be happy to forward such a request for you and would you like to have the record held at this point to receive it? Mr. ECKHARDT. I would, Mr. Chairman, and I would like to amplify just a bit. Mr. Moss. May I first get unanimous approval for the request? Mr. Moss. You may now amplify. Mr. ECKHARDT. The Solicitor General, in describing the reasons for the criteria for seeking certiorari, stated several points. I won't state them all, I don't know that I can state comprehensively in a short time what he described as those standards. But one of them was those cases that are appropriate for review; that is, his screening responsibility related to protecting the docket of the Court. Another had to do with the appropriateness of that particular case as a test case from the interest of the agency iself. 20-306-74-pt. 1-24 Another was the question of determining, or acting to a certain extent as an umpire between various agencies of Government where the position of the Government might not be a single one. What I am particularly interested in is this third area and which cases have to do with this area. Mr. MACINTYRE. The last you mentioned? Mr. ECKHARDT. That is right. It seems to me that by the very nature of an independent agency, that agency, that agency must be permitted, like an individual or like one of the departments of Government, to express its position and to have authority to make a determination with respect to the expression of that position, or else the executive department through the Attorney General is, in effect, exercising the judicial function of deciding whether or not your position should be presented to the Supreme Court. Now I don't mean here to argue, I don't mean in your reply to this information necessarily to argue one way or another but I am interested in those cases that go to that question. Mr. Moss. If I may first, for the purpose of the record, I think the Commissioner has indicated that the request would have to be addressed to the Commission, the resource of the Commission would have to be sought. I think the amplification would have to be included in the request for transfer to the Commission because it is not presently within the jurisdiction of Commissioner MacIntyre to supply the requested material. It would come through a formal transmittal to the Commission. Mr. MACINTYRE. I am sure the Commission would be cooperative and give you the information you have asked for in that respect. Mr. ECKHARDT. May I say this Mr. Moss. Is there objection to the request? If not, the record will be held at this point. [The following information was received for the record:] LIST OF CASES IN WHICH THE DEPARTMENT OF JUSTICE GRANTED THE FEDERAL TRADE COMMISSION'S REQUEST TO PETITION THE SUPREME COURT FOR CERTIORARI LIST OF CASES IN WHICH THE DEPARTMENT OF JUSTICE DENIED THE FEDERAL TRADE COMMISSION'S REQUEST TO PETITION THE SUPREME COURT FOR CERTIORARI Mr. MACINTYRE. I can tell you something of what my personal experience is regarding the position of the Solicitor General. Mr. ECKHARDT. I would very much like to hear it. Mr. MACINTYRE. I don't have any objection to a Solicitor General doing the briefs and presenting the arguments to the Supreme Court in Trade Commission cases. This problem arose as a result of the Judges Act of 1925. Until that date, each of these agencies-there weren't many then, the ICC and FTC I believe were about the only two regulatory agenciesmade determinations as to whether to go to the Supreme Court and, once their petitions were accepted, they presented their cases and argued them. But so did a lot of other agencies of the executive branch of the Government, independent of the Solicitor General. Well, Chief Justice Taft was somewhat incensed over this. He felt that all of these agencies coming in, making petitions, filing appeals, and presenting cases not only resulted in overloading the Court but, as was suggested here earlier this morning, conflicts sometimes arose in two or three different departments of the Government on the same point of law in the executive branch before the Supreme Court. So, he had some justification for urging upon the Congress the passing of the Judges Act to restrict this. But, again, it is like the Reports Act. He didn't have in mind so much the regulatory agencies, of which a number have been created since. In effect he was shutting all of them out of the Supreme Court if the Solicitor General so wished. The fault I find with it is this. It amounted to giving the Solicitor General veto power, to substitute his judgment for the judgment of the membership of an agency as to whether or not a petition ought to be filed in the Supreme Court. The FTC is not an executive branch agency. If it were an executive branch agency, I think, of course, the President, the Attorney General, and the Solicitor General rightly ought to make the decision, policywise, as to whether or not the Commerce Department, for example, is to go to the Supreme Court on an issue, because they have the responsibility for the Commerce Department. But neither of them has the responsibility for the implementation of the public policy by the Federal Trade Commission, that is the Federal Trade Commission, or in the case of Securities, the SEC. |