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Mr. CURRY. Where it has been vested in the chairman, it has not been altogether satisfactory in some cases. Mr. Gibson called attention to some of the difficulties with the Maritime Commission and a point that I wish to make
Mr. HOLIFIELD. Wait just a minute. Is it not true that the original set-up of the Maritime Commission was on the basis of equal work and responsibility, and did they not get into all kinds of trouble on that basis, and now that particular method has been changed to the one advocated in plan No. 7 where the responsibility is now not on the whole commission but with the chairman?
Mr. CURRY. That may well be.
Mr. HOLIFIELD. It is a matter of fact.
Mr. CURRY. I do not dispute whatever you say on that but I am speaking of this agency, the Interstate Commerce Commission which I believe enjoys as good a reputation as any of the administrative agencies. As I say, I have been connected with its work over many years. I have lost cases and I have won cases and I feel that it has something there that is extremely important to protect in the public interest.
Mr. HOLIFIELD. I certainly agree with you that it has been a very effective and fair board and I certainly would not want to do anything that would impair it.
Mr. CURRY. I am sure you would not.
Mr. HOLIFIELD. How would you dispose of this recommendation by the Hoover Commission: "Administration by plural executive is universally regarded as ineffective. That has been proved to be true in connection with these commissions."
Indeed, those cases where administration has been distinctly superior are cases where the admininstrative as distinguished from the regulatory duties have been vested in the chairman and that is all this does. There are many of these administrative duties. Their efficient handling will frequently make the difference between a commission's keeping abreast of its work and falling behind.
We recommend that all administrative responsibility be vested in the Chairman of the Commission.
I am reading from page 5 of the Hoover Commission recommendations on regulatory commissions.
Mr. CURRY. I would say this. I heard Mr. Lawton, a very able and impressive gentleman who is Director of the Bureau of the Budget testify before the Senate committee and he was asked what specific improvements have you in mind as a result of these plans, including plan No. 7. He says, "I have no specific improvements in mind."
He was asked by the chairman, "What are the weaknesses now in these agencies? Can you mention any specific one?"
He said, "No."
The third question was asked, "Can you indicate economies that would result?" That is what you would expect as a fair test of some administrator going in there, and he says, "I cannot point out economies."
Now, I think that those answers go a considerable distance in meeting this theoretical question. If I may finish my statement, I would like to go back to that a little later.
PLAN NO. 7 WOULD DISRUPT THE FUNDAMENTAL NONPOLITICAL PATTERN OF THE COMMISSION
This Commission pattern, which marks a step forward in our system of government and which has stood the test of time, should not be marred or disrupted by the nebulous delegation of broad authority provided for in plan No. 7.
However laudable the motives of the sponsors of this plan, we believe that the great concentration of executive and administrative authority in the chairman who is to be appointed by the President and to serve as such chairman for an indefinite term is a serious threat against, and is calculated to undermine, the disinterested, impartial nonpolitical character of this agency, which has been carefully nurtured and preserved since its creation in 1887, over 63 years ago.
I might say there when you examine this plan it seeks a delegation of executive and administrative functions and if anything is indefinite it is that administrative power, administrative function.
The Interstate Commerce Commission is authorized to administer the Interstate Commerce Act. The Interstate Commerce Commission is spoken of as an administrative agency. So the word "administrative" has a very broad meaning and therefore there is something to fear in that indefiniteness and in that broadness.
Such concentration of powers in a chairman appointed by the President, including powers as to assignment of cases, appointment of employees, promotions, and so forth, not only will provide opportunity for political influence, but, what is almost as bad, the public will be suspicious of political influence.
There is grave danger that such authority in a Presidentially appointed chairman would lead to subordination of the positions of the remaining 10 Commissioners, to fear on their part of undue influence by the chairman in respect to reappointment of incumbents, and to disastrous discouragement of competent high-caliber men from accepting appointment as members of this Commission.
The plan raises questions as to conflict with the Administrative Procedure Act, including whether the Presidentially appointed chairman can appoint examiners who must now be appointed by and for the Commission, and whether separation of functions and reasonable independence of judgment as provided by that act can be maintained. It further raises questions under section 17 of the Interstate Commerce Act which authorizes the Commisison to divide its work among divisions, boards of employees, and individual Commissioners. There is danger that, irrespective of the vague reservations made in the plan, the chairman could assign work, distribute cases, grant or deny extensions of time, determine what prosecutions should be brought in court, control the appeals to be taken from court decisions in respect to the Commission's orders, and exercise broad powers in other respects, with resultant loss of independence in the Commission and its staff and a sharp decline in public confidence.
At present each Commissioner has control of at least one bureau. Familiarity with its work contributes toward a better understanding of the technical matters calling for decision in litigated cases. There are 15 such bureaus in the Commission and a total of 2,131 employees. It is difficult to believe that a Presidentially appointed chairman could satisfactorily serve as a one-man repository of the wisdom and ex
perience which are acquired by the individual Commissioners under the present system of operation, and, if he himself should seek to manage this large and important organization, it is doubtful if much time or energy would be left for thoughtful contemplation of the main issues presented to the Commission for consideration.
There has been some suggestion that large savings in Government expenditures would be effected by the proposed reorganization plans. As to plan No. 7, however, this is not seriously contended, and certainly is not shown, by its sponsors. In fact it is not difficult to believe that by the time the Presidentially appointed chairman provides for administrative assistants and other subordinates the total costs may be increased instead of reduced. A fundamental difficulty faced by the Commission and sometimes resulting in unjust criticism is the lack of adequate funds to implement its work, to provide well-deserved promotions, and to make staff positions financially more attractive.
Finally, it may be said that concentration of authority in a chairman appointed by the President could well be the first step toward transferring administrative and executive functions, and the bureaus in which they are exercised, to an outside Department of Transportation or subdivision of one of the departments-a procedure which has been vigorously opposed by those interested in the Commission's work and its political independence. For reasons previously stated this step should be disapproved and plan No. 7 should be rejected.
Mr. HOLIFIELD. How could the President appoint, place this Commission in a Department of Transportation?
Mr. CURRY. It could not under this particular law as the recommendation now stands because all of this authority is now placed in a Chairman. The point made here is that that could well be the first step, having put all these powers in that one basket and then pass that over to a Department of Transportation.
Mr. HOLIFIELD. There is no mention of a Department of Transportation. The Congress must create such a department; the President cannot do that.
Mr. CURRY. That is true, but what those who oppose this plan I think fear, and they think it is their duty to bring to the attention of you gentlemen, is that this has the appearance of carrying forward some constructive sort of legislation, something that has been or will be helpful to the public, something that would do a great deal of good.
You are interested in carrying out your duties in voting in a way that certainly would be helpful to the public. If this would accomplish that sort of purpose, it would have a great deal behind it to commend it but what we fear and I speak now as one of the large number of those practicing before the Commission, who are interested in an impartial tribunal
Mr. HOLIFIELD. You were a member of the Commission at one time?
Mr. CURRY. To practice before the Commission-1926.
Mr. HOLIFIELD. You do not look that old.
Mr. CURRY. We as practitioners, as you could well believe, are interested in going before a tribunal that will decide cases on the law and on the facts.
The CHAIRMAN. Is that not true of those regulatory commissions where the President appoints the chairman? They function just as you outline it.
Mr. CURRY. In those cases, though, as I understand it, there is not the vast transfer of powers to the chairman that is contemplated here. Here is contemplated these very broad-it says executive and administrative powers are transferred to the Chairman of the Commission. The CHAIRMAN. You know what is interesting to see how you interpret one group of words in transferring powers, broad powers, and in another group of words, placing the limitation upon the Chairman of this by the Commission. You say that does not mean anything. That does not mean anything-those are just words there that are vague, but the restrictions and limitations placed on the Chairman to be exercised by the Commission are clear and distinct. They make the policy and certainly the Chairman cannot go beyond that any more than he could go beyond the other provisions of the law, but you want to read in that group that that does not mean anything; those are just words on paper. I cannot follow you.
Mr. CURRY. I think they are very indefinite words.
The CHAIRMAN. And so are these indefinite. You say executive is indefinite and administrative. I do not know what that means. you use them there.
Mr. CURRY. That is indefinite and that is one of the dangers. In other words, you take a chairman who is rather ambitious, and he will say "administrative" is a broad word. I can do this and I can do that and I say there is a danger.
The CHAIRMAN. And so the other members of the Commission, who are also human beings, will take the language which you say is vague and tie him up any time they please. But we are going to have cooperation here and not fights. However, if they want to fight the power is reserved within the Commission to tie him up any time. Mr. CURRY. But the point is that—and I do not want to argueThe CHAIRMAN. I want you to argue.
Mr. CURRY. Your viewpoint any more than is necessary. But the point is this: You gentlemen are practical men. I do not believe that you would step into a corporation or step into a business or into anything that you are interested in and try to change it in a rather radical manner unless there are certain good reasons for it.
The CHAIRMAN. That is right.
Mr. CURRY. Unless you find that certain economies will be brought about or unless you find there will be a fairer administration of the law. Now, the point that seems to me is so important here is that this tribunal has been set up as an independent administrative tribunal. There have been certain safeguards put there. The public generally is satisfied with that. The Commissioners have operated under it in a satisfactory manner. There can be no doubt that if you set up a superchairman there will be great difficulty in getting other members. to accept positions on that commission.
The CHAIRMAN. I do not see that you have difficulty on any of the other commissions where the President appoints the chairman. You have 10 times more applicants than men who are refusing to take the jobs.
Mr. CURRY. There are plenty of applicants, but the point is to get a man that will go in there unfetered-untied down by any particular
interest-and he will go in there and do his duty impartially and as a coordinate member of the Commission.
The CHAIRMAN. They are doing that in the other commissions where the President appoints the chairman; they are still carrying out the duties; there are still high-class men who are going to function; and there will be nothing here except this administrative matter and the safeguards and the limitations upon any exercise or power beyond that still rest with the Commission.
Mr. CURRY. I do not think they have quite the authority that this proposes to give the Chairman.
The CHAIRMAN. Then you want to change the meaning of words. You say, what it proposes. It sets out in clear language the limitations; and yet you fear it does not mean what it says, that the words there do not mean what they say.
Mr. CURRY. Whatever they mean, I think it is very destructive of this tribunal and therefore Congress ought to be very careful in changing a condition that has existed all these years.
Mr. HOLIFIELD. Mr. Curry, I have here the Hoover Commission report on the regulatory commissions and their recommendation No. 1 is:
We recommend that all administrative responsibility be vested in a Chairman of the Commission.
Speaking of the regulatory commissions.
Now, how is Congress to implement that unless we proceed as we are proceeding not only in this case but in many many other cases which apply to the regulatory commissions? How are we to implement that principle which obtains in private industry unless we proceed just as we are proceeding here in plan No. 7?
Mr. CURRY. Of course, the point is this and this is sort of fundamental and I think unless you have been before these tribunals, and in a way I have been on the inside, you must protect the independence of the Commission.
Mr. HOLIFIELD. I agree with you on that.
Mr. CURRY. If we do not have that, the Commission will simply pass out.
Mr. HOLIFIELD. We are protecting that independence.
Mr. CURRY. We get to this chairmanship. We have here not merely the question of a chairman. The Hoover report merely puts before Congress, as I understand, the question of a chairman and recommends a chairman.
Mr. HOLIFIELD. It goes to the basic point of recommending a clear line of authority from the top to the bottom, which is now confused due to conflicting acts of Congress in many different agencies. It is to help set up that clear line of authority that this particular recommendation applies not only in this regulatory commission but in other regulatory commissions.
Mr. CURRY. But that Hoover report is silent, as you have pointed out, as to the Presidential appointment. In other words, the Hoover Commission did not go to the next step which the task force did, that is, to recommend that the Chairman be appointed by the President.
Mr. HOLIFIELD. That is true, but you will agree with me that silence can work both ways. If they had been against it, I would take the position that they would have recommended against it. You say they