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The CHAIRMAN. According to your interpretation, you have not changed the intention of the original tentative draft?
Mr. BROWNLOW. That is right. The CHAIRMAN. You have merely made clear that intention! Mr. BROWNLOW. Yes; that is true, sir. May I say there is one other change in the very first section of the bill where we specifically except the General Auditing Office from the agencies of the Government that might be transferred. That again was implicit in our other bih if you read it in connection with existing statutes.
Senator OʻMAHONEY. Do you think there is any possible ambiguity with respect to the definition of the word "regulatory” in the first line of paragraph (g) considering the fact that the function of the Interstate Commerce Commission is in itself regulatory?
Mr. BROWNLOW. Well, it also has other functions.
Senator O’MAHONEY. Yes; but what you are doing here is segregating the regulatory functions from policy determining functions. I am raising the question whether in your opinion there would be any possibility of ambiguity there since the primary function of the Interstate Commerce Commission is regulatory.
Mr. BROWNLOW. I am not at all sure of that it seems perfectly clear to me. It was clear to us in our report and we attempted to clarify that. Now, if on examination it is not sufficiently clear or is ambiguous, of course it should be made more definite. In section 2
Representative TABER. Just a moment. Your section 1 would still cover the Supervising Architect of the Capitol and the Clerk of the House and the Chief Clerk of the Senate?
Mr. BROWNLOW. No, sir.
Mr. BROWNLOw. The intent is that it does not cover that because it should be read in connection with section 501, in which the definition of agencies occurs, those in the executive departments and certain others.
In section 2 is a change by making section 2 of the former draft subsection (2) of the new draft, and by adding two subsections limiting the power of the President. These subsections are (b) and (c).
Subsection (b) provides definitely that the President may not abolish an executive department, or the municipal government of the District of Columbia, or the Federal Reserve Board, and further provides that he may not transfer all of the functions of an executive department or of the District of Columbia or any of the functions of the Federal Reserve Board to any agency. A similar proviso as to the District of Columbia Government has been eliminated from section 501.
We had a proviso about abolition and there was a place where we wanted to make the bill more clear in consonance with the report itself.
Subsection (c) provides that the regulatory functions of any independent regulatory commission which are quasi-judicial in nature, may not be exercised by or supervised by any administrative or executive officer, but shall be exercised by a regulatory commission which shall be appointed, removed, and have a tenure of office in the manner prescribed by Congress. There is a proviso, however, that in the case of a large regulatory agency where expedite or routine action is necessary the function may be exercised by an administrative or executive officer subject to the review of the commission.
Senator O'MAHONEY. That calls attention again to the question I raised. Obviously you are using the word "regulatory” here in a different sense from that in which you used it in the first amendment.
Mr. HESTER. If you read subsection (c) of section 2 I think you will see that they both read the same.
Senator O'MAHONEY. Well, you refer to the regulatory functions of any independent regulatory commission. Now, the word "regulatory” in those two places has a different connotation, does it not?
Mr. HESTER. It is modified, though, in each case. Take, for instance, section 1 (g), it says:
To segregate in any agency of the Government regulatory functions which are exercised in essentially the same manner as the functions of a court are exercised
And in section 2 (c) it says:
The provisions of this title shall not be construed to authorize the exercise, or supervision of the exercise, by any administrative or executive officer, of the regulatory functions of any independent regulatory commission, which are exercised in essentially the same manner as the functions of a court are exercised
Representative TABER. It cannot be an independent regulatory commission if it is under the jurisdiction of a Cabinet office ?
Mr. HESTER. It can and will be as to the exercise of its quasi-judicial functions, as is clearly indicated by sections 1 (g) and 2 (c) of the bill.
Representative TABER. You would have to have a definition of independent regulatory commission.
Mr. HESTER. What was that point again!
Representative TABER. You will have to have a definition of an independent regulatory commission if you are going to do what you say, to make it clear.
Mr. HESTER. I think they are pretty well understood today, such as the Interstate Commerce Commission, the Federal Trade Commission, and Federal Power Commission.
Representative TABER. It will not make any difference after you pass this bill.
Mr. BROWNLOW. The point Mr. Taber is raising is that if they report to the department
Senator O'MAHONEY. We have some commissions where they make a report to the department for transmission to Congress. Isn't that true, Mr. Hester?
Mr. HESTER. That is right.
rned, they are independent; they are independent of control by the department to which they submit their reports for transmission to Congress.
Mr. HESTER. I think since the Humphreys decision in the Supreme Court there can be very little doubt about what is an independent regulatory commission.
Mr. BROWNLOW. But in any event, this is a draft which attempts to express what we put in our report; and, in any event, in the wisdom of the Congress the insertion of the definitions would not be difficult.
In section 211 (a), in the chapter on the "Reorganization and extengion of the merit system", title II, we make a slight amendment just
for clarification by exempting specifically judges of legislative courts from appointment by the heads of executive departments or independent agencies.
Senator BYRD. What page is that?
Mr. BROWNLOW. Legislative courts. That was in there in section 501 anyhow.
Representative TABER. But you have not excepted the members of the regulatory commissions? They are going to be under a department and that would be necessary at that point ?
Mr. HESTER. They would come within the meaning of the term "independent agencies.
Mr. BROWNLow (reading):
Representative TABER. They would not be independent if they were in a denartment.
Mr. BROWNLOW. That is our definition; it is the same question we had before..
Senator BYRD. Mr. Brownlow, to what extent does this limit the power of the Senate to confirm appointments as it exists now?
Mr. BROWNLOW. This particular section? It takes away, as is explained more in detail in our report, a great many Presidential appointments.
Senator BYRD. Could you submit to the committee for inclusion in the record a statement that indicates to what extent the power of the Senate to confirm has been reduced ?
Mr. BROWNLOW. We can get up a number of the positions.
Senator BYRD. In other words, what I would like to see is a list of those appointments which the Senate now confirms but which they will not confirm if this bill is passed.
Mr. BROWNLOW. There would be a good many because we have recommended the extension of the merit system on a career basis to all except policy-determining agencies, following the exact language of the Democratic platform and the language of Mr. Landon's telegram to the National Republican Convention.
Senator BYRD. You still believe the Democratic platform ought to be carried out?
Mr. BROWNLOW. I believe that both of those platforms should be carried out as we have set forth in our report.
Senator O'MAHONEY. Wouldn't that be a rather difficult matter, to carry both of them out?
Mr. Browlow. Not on this point.
Senator BARKLEY. Do you believe, for an important position like this, which is almost as important as that of a Cabinet Officer, where the President ought to be able to survey the qualified men of the whole country for this administrator, you can get the best man for it out of a list of three who are sifted up through a civil-service examination?
Mr. BROWNLOW. The appointment of the United States Civil Service Administrator, of course, would be subject to confirmation by the Senate. Having in view the whole background of the work of civil service commissions and in accordance with our conviction that you do not get good administration from a multiple-headed body but only in the administration process from a single head, we thought it was the better plan to select the United States Civil Service Administrator by a competitive system. Therefore, this board of seven, appointed by the President, with overlapping terms, confirmed by the Senate, is authorized to set up an examining board which will make an examination, a Nation-wide competitive examination, and report to the President the three highest names.
Representative VINSON. Don't you think the fact that you would hold a competitive examination would automatically exclude some of the very best men in the country for this position, who might be available if such competitive examination was not held ?
Mr. BROWNLOw. No, sir; because if you follow the best personnel practice in Government and in private practice the board of examiners would invite various men to take that examination.
Representative Vinson. You did not get my point. I am not speaking about the invitation not including them, but it occurs to me that the mere fact that they had to submit themselves to a competitive examination would exclude some of the very best executive and administrative minds in the country.
Representative TABER. You would not get anything but a candidate, in other words.
Mr. BROWNLOW. No; you could invite persons who would not present themselves necessarily as candidates. I do not know just the type of man, Mr. Vinson, that you have in mind, who would be excluded.
Representative Vinson. I am not speaking of their being excluded from the invitation, but it is a question of accepting the invitation. That is the point. I say that it would be the very best executive minds, who certainly would be able to administer this law most satisfactorily, who would not accept your invitation and take the competitive examination.
The CHAIRMAN. Mr. Vinson means, and I think he says, that the mere act of requiring a civil-service examination would prompt many of the best executives who might otherwise be available to refrain from taking the examination, and those who took the examination might be of an inferior ability. What is the advantage of limiting the President's power to a group of three selected in the manner that the bill provides? That is the question he asks.
Mr. BROWNLOW. In the first place, may I say that of course the examination would not be an examination of a clerical type and not necessarily a written examination. It might be by the presentation of documents and books that had been written, but it would be a broad examination.
The CHAIRMAN. It would be any examination that the Board saw fit to require.
Mr. BROWNLOW. The reason then, to reply to the second part of your question, Mr. Chairman, the reason is that a little more than 50 years ago, when the civil service was introduced into the Government of the United States, and which has been gradually extended every few years during the 50 years, the concept was the negative concept of a protection of the service against the excessive evils
of the spoils system. Therefore, a bipartisan board was set
and great advances have been made under that Commission. But the time has come, in the judgment of this committee, and of a great many other students of the problem, when the positive phases of personnel management must be considered, not merely the protective phases, and the Government must be able to go out and enlist the most capable men and women in the country to enter on careers in the administrative work of the United States.
Senator O’MAHONEY. Of course, that is the objection that is being raised to what you say, namely, that this system that you propose automatically excludes some of the very best persons in the country and opens the door almost alone to those who happen to be either applicants for a job or those who are in the civil service.
Mr. BROWNLOW. It does not close the door, in my judgment, as much as the system of political appointment which very largely limits positions of that character in Federal, State, and local governments to the members of one political party, to the members of one faction within that political party, and to the people who have certain political backing. In this position, where one man is to become the Administrator of the civil service of the entire United States, in our judgment, the man should be chosen under the principle of the merit system itself in the same manner that the people that are going to work for him are chosen.
Senator BARKLEY. Right there I can agree with you on the general principle of Government employees, but here is an administrator over all the Government force; in salary and importance he is placed on almost an equality with any Cabinet officer. This provision limits the President's power of appointment to those who are seeking the job and makes it impossible for him to draft anybody who might not be an office seeker, who might not be out after the job, and who would not want to go through the minutiae of taking the civil-service examination something like a rural mail carrier or a third-class post office.
Mr. BROWNLOW. It is not that type of examination, Senator.
Senator BARKLEY. No; it is not that type, but it is one that will be fixed by men who occupy an inferior position to the man who is to be appointed.
Mr. BROWNLOW. We base our recommendation on the other theory, that this would open up all of the capacities in the country for a review and examination so that the very best man might be found, and that the selection would not be limited by some of the practical limitations that are placed upon any President with respect to appointment to high positions.
Also, we think that the Civil Service Administrator himself would be protected, and the President, himself, and the other responsible heads of departments would also be protected, if the Civil Service Administrator were selected under the rules of the merit system, so he would not be, however good he might be, subject to the charge that he was a mere patronage broker appointed for political purposes by the President who happened to be in office at the time.
Senator O’MAHONEY. Mr. Brownlow, I will not ask you to answer this question, but I merely suggest it: Suppose in the instance of the appointment of the particular committee of which you are the head the President had been required to make the selections from a com