also was given authority to relax by regulation specific reporting requirements applicable to employees filing public or confidential reports. (H.R. 6954). The Judiciary Committee recommended a system in which the President had broad discretion 1) to designate the employees who should file confidential reports and 2) to determine what information should be contained in such reports. (H.R. 1). This second element of discretion was recommended by the committee over objections to the effect that the bill would permit the President to impose overly intrusive and burdensome confidential disclosure requirements on lower level employees. See H.R. Rep. No. 800, 95th Cong., 1st Sess. 100 (1977). A single compromise bill (H.R. 13850), in the nature of a substitute, was taken to the House floor. The substitute bill followed the form of the Judiciary Committee's H.R. 1 in many respects, but it also contained some new provisions which presumably answered the objections of dissenters and adopted positions recommended by the other interested committees. The limiting language of Section 207(a) concerning confidential reporting, in such form as is required by this [title]," first appeared in the substitute bill presented on the House floor. Representative Schroeder, a supporter of the substitute and the Chairwoman of the Post Office and Civil Service subcommittee that reported H.R. 6954, explained this provision of the substitute as follows: Seventh, there is provision for confi- required, according to the same form as 124 Cong. Rec. 30419 (1978). 9/ As noted previously, the Post Office and Civil Service Committee's bill required the same information on public and confidential reports. As the March 2 Memorandum observes in detail, members of Congress did express sentiments, both in committee and on the floor, to the effect that the President should not be permitted 9/ Representative Schroeder made this remark in the context of "point [ing] out some of the good provisions of the substitute which came from the work of [the Post Office and Civil Service] committee as shown in H.R. 6954, Part I, the bill we reported and one of the three we have passed over for the substitute." 124 Cong. Rec. 30419 (1978). to require more intrusive and burdensome disclosure in the confidential disclosure system than Congress had mandated for the public disclosure system. See March 2 Memorandum at 3-23. The March 2 Memorandum concludes that the most sensible reading of this legislative history is that Congress intended to place only an upper limit on the information that could be required of lower level officials in the confidential system. The deficiency in this conclusion is that while the language of the statute and its history support the view that such an upper limit was intended, they fail to support the proposition that no lower limit was intended. Standing alone or viewed as part of the entire history, the fact that some Members of Congress wanted to place a limit on the President's discretion to seek personal information from government employees supports only the conclusion, when coupled with the language ultimately adopted, that the confidential system could not be allowed to be more intrusive than the public system. It does not support the conclusion that the President was given discretion to collect less information in the confidential disclosure system than in the public system. The legislative history in its entirety in fact reflects a desire for a system that would impose equal and reasonably uniform burdens on all employees required to file reports. Congress had decided what categories of information would be material in evaluating potential conflicts of interest and seemed to want to impose those requirements on some officials and leave to the President whether to impose essentially the same burdens on others. The March 2 Memorandum does not explain, indeed it does not even cite, the statement of Representative Schroeder relating the language of Section 207(a) in the substitute to the view of the Post Office and Civil Service Committee that there should be essentially the same disclosure requirements in the public and confidential systems. Our interpretation of the statute is compatible not only with the legislative history relied upon in the March 2 Memorandum, but also with the language of the enactment itself and the statement of Representative Schroeder concerning the views of her Committee and its role in the compromise that led to the enactment of Section 207(a) in its present form. In addition to its argument based upon the legislative history, the March 2 Memorandum makes numerous other subsidiary arguments to support its conclusion. We will respond to those briefly. The March 2 Memorandum's argument that Congress could have specifically referred to "the long-form disclosure requirement" if it wished to, especially since it did in other cases, does not advance its conclusion since the same logic is even more true of the alternative interpretation of the statute. Congress surely would have said so if it intended to grant complete discretion to the President except as limited by the standard of the maximum amount and types of information required of the higher officials. Congress in fact set such a limit in Section 202(a) of the Act where it gave the Director of the Office of Government Ethics authority to require disclosure of gifts to dependent children "if the information required to be disclosed does not exceed that which must be reported by the spouse of a reporting individual under this title." Section 202(a) (emphasis added). The argument that Congress could have expressed itself more clearly had it intended a certain result is not particularly strong for either conclusion in the facts of this case, but it is more weighty in favor of the OLC conclusion in light of the linguistic awkwardness of reaching the alternative conclusion urged in the March 2 Memorandum. The purpose behind a reporting system that seeks essentially the same categories of information from all reporting employees-a purpose that the March 2 Memorandum is entirely unable to discern--is apparently the goal of a comprehensive, uniform system. As unpleasant as it might be to fill out these forms, they seek only certain basic financial information such as sources and amounts of income, investments and liabilities, the sources and amounts of gifts and reimbursements, and the identity of financial affiliations. Although it is possible to disagree with the wisdom of the result, it is entirely reasonable for Congress to have assumed that these are precisely the categories of information that should be disclosed to avoid potential conflicts of interest by employees without imposing unjustifiable burdens on the privacy of those employees. The March 2 Memorandum argues that its interpretation must be correct because it is the most "reasonable" in terms of its effect on the Executive Branch. The word "reasonable" in the context of the March 2 Memorandum is implicitly translated into "least burdensome" on the Executive Branch. While this would be a convenient theory upon which to predicate statutory interpretation, it ignores the language of the statute itself and overstates the significance of the judicial authorities upon which it relies. In most of the cases cited, a literal interpretation of the statute in question would have been nonsensical, entirely impracticable, or manifestly inconsistent with the legislative history. In matters of ethics, but in other areas as well, Congress has not been motivated strictly by the ease of application of the statutory requirements or their convenience for the Executive. Here, for the reasons enumerated at the outset of this letter, the burden on the Executive, especially as perceived by the Congress, may not be as great as it has been portrayed by those anxious to avoid the requirement. We certainly agree that this Administration has been committed to addressing and reducing unnecessary paperwork burdens and to reducing the oppressive force of such burdens on those who would work for or with the government. Sympathy with this policy, however, does not allow us to stretch legislative intent to suit those goals unless Congress has permitted such a range of options in the statute. Similarly, while Congress did intend a more flexible treatment for special government employees, it made specific provision for their situation in the Act itself. See discussion at 5, These provisions can surely be used to mitigate some of the harsher aspects of the Act with respect to special government employees, but they are not an excuse to rewrite the Act itself--even if only with respect to such special government employees. supra. Finally, the March 2 Memorandum finds it "difficult to believe that Congress wished to exempt [certain officials] from the requirements [of the financial disclosure statute], but at the same time left the door open to imposition of the very same requirements through an executive order." In fact, Congress did this very thing, even under the analysis of the March 2 Memorandum. It left the "door open" to the President to impose the reporting requirements on employees not covered by the public disclosure system. CONCLUSION While it would certainly be preferable to read the statute in the manner suggested, we are unable to conclude that it is amenable to that interpretation. We have reviewed the statute and its legislative history repeatedly, but we cannot accept the tendered legal analysis, irrespective of the lack of popularity of our conclusions. The statute requires that any general system of financial reporting imposed by the President require the same information as is required in the public reporting system established by the Act. Sincerely, Theodore B. Olson Assistant Attorney General The Senate Subcommittee on Oversight of Government Management will hold an oversight hearing on the Office of Government Ethics on Tuesday, April 2. The hearing will focus on the OGE's performance of its duties under Title IV of the Ethics in Government Act of 1978. The Subcommittee will also examine the implementation of the post-employment conflict-of-interest provisions of the Ethics Act and the status of the confidential financial disclosure system. The hearing will begin at 9:30 a.m. in room 366 of the Dirksen Senate Office Building. I ask that the appropriate official of the Department of Justice appear before the Subcommittee to address the Department's views on the confidential financial disclosure system and the enforcement of the "revolving door" provisions of the Ethics Act. Specifically, I ask that the testimony discuss the following issues: |