Definitions

As used in this report, the term "legislative activities" includes all activities, direct or indirect, of administrative departments relative to legislation pending or proposed to be introduced in Congress. It includes the preparation and drafting of proposed legislation in administrative departments or under their direction and all efforts on their part to secure the enactment of such legislation. It includes efforts by administrative departments to promote, defeat, or change proposed or pending legislation which they did not originate but in which for any reason they are actively interested. It likewise embraces reports to either house of Congress or to congressional committees by administrative departments, whether made on their initiative or pursuant to congressional request or instruction. It also includes appearances of representatives of administrative departments before congressional committees in explanation or support of or in opposition to proposed or pending legislation.

The term "administrative department" applies to all executive departments, independent commissions, boards, bureaus, agencies, or other establishments of the Government, except the Office of the President, the Legislative and Judicial Branches, and the municipal government of the District of Columbia. It applies also to all subdivisions of all agencies included and to their officers and employees, but excludes appearances by officers and employees in matters having no relation to their official duties.

The exercise of the constitutional powers of the President in relation to legislation is outside of the scope of this report except as it is affected by the legislative activities of administrative departments. Similarly, the report is not concerned with the manner in which the Congress exercises its legislative functions, although the effects of the legislative activities of administrative departments upon congressional consideration and action are noted at various points.

1 Most of the factual information presented in this report on the present machinery of central clearance of legislative proposals of administrative departments, as well as much of the information on the preparation of legislative measures in the departments, was collected by John R. Millett.

Importance of the Subject

Out of the total of 429 public acts exclusive of appropriation acts in the first session of the Seventy-fourth Congress (1935), 270 referred to the organization or functioning of administrative departments. In the second session of that Congress (1936) there were 156 acts of this character.

There is little doubt that the great majority of these acts originated, directly or indirectly, in the departments concerned. Many other bills promoted by departments did not become law, and departments expressed opinions upon and engaged in other legislative activities in relation to many bills they did not initiate.

Throughout the history of the country there has been some promotion of legislation by administrative departments,2 and such activities have tended to increase as the functions of the Government have grown. This is a phenomenon characteristic of all modern governments.

In all probability the legislative activities of administrative departments will continue to be at least as extensive in the future as they have been in the past. Many of these activities are in the interest of good government and are distinctly helpful to the Congress. A large part of them are undertaken at the instance of Congress or of congressional committees. The problem presented is not one of doing away with all such activities, but of so controlling and channelizing them that they will promote and not hinder the performance of legislative functions by the Congress and of executive functions by the President.

All strong Presidents throughout the Nation's history have been legislative leaders, and in their administrations the legislative activities of administrative departments have been most extensive.

* See Robert Luce, Legislative Problems (New York: Houghton-Mifflin Co., 1935), pp. 197-263. In the first session of the first Congress there was an extensive debate over the drafting of legislation by the Secretary of the Treasury. In Jefferson's administration John Randolph of Roanoke, in a speech in the House of Representatives, denounced the interference of the President in legislation and the practice of the departments in promoting and preparing most measures passed by the Congress. At the close of Jackson's administration a member of the Ways and Means Committee in a public speech charged that all bills reported by that committee were drafted in the Treasury Department.

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Before giving an account of present practices and suggestions for improvement in the legislative activities of the administrative departments, it will be helpful to present briefly the principles which should govern these activities. An attempt to formulate these fundamental principles is presented below. Though the precise statement of these principles will not be acceptable to everyone, it is believed that the ideas expressed are in accord with the views of the great majority of administrators, legislators, and students of government.

1. Under the Constitution, Congress is the Legislative Branch of the Government and must determine all legislative policies. It has final control of the organization of all administrative departments and the exercise of administrative powers. The legislative activities of administrative departments, consequently, should be developed with this fundamental principle ever in mind and should be directed toward giving the Congress the complete information it needs for the wisest exercise of its powers.

2. The founding fathers wisely created a single not a plural Executive. The Constitution centralizes responsibility for efficient administration in the President. The President, moreover, is specifically charged in the Constitution with important duties in relation to legislation. It is his duty under article II, section 3, to recommend to the Congress, "from time to time", "such Measures as he shall judge necessary and expedient", and he is expressly authorized in article II, section 2, to require "the principal Officer in each of the executive Departments" to give him his "Opinion, in writing, * upon any subject relating to the Duties of their respective Offices." 3. Inasmuch as a large part of all legislation is concerned with the structure or functioning of administrative departments and the creation or modification of administrative powers, Congress is entitled, in the consideration of such legislation, to get from the administrative departments the benefit of their experience and special knowledge. Conversely, it is the duty of the administrative departments to give to the Congress their suggestions regarding needed changes in the laws they administer.

*

4. All ideas and procedures in bills that originate in the Executive Branch of the govern

ment should be completely worked out before presentation to the Congress. The financial, international, and other effects and implications of all such proposals should be carefully examined, and before any attempt is made to interest the Congress in the enactment of these proposals into law all probable consequences should be weighed judiciously, to prevent creating more serious problems than the conditions which it is sought to remedy.

5. Conflicts and differences between admin-· istrative departments, both as to policies and as to details, in proposals for legislation should, so far as possible, be adjusted before such bills are presented to Congress. Though the ultimate decision in all such conflicts rests with Congress, its work is hindered by bickerings and conflicts between departments over jurisdiction. 6. Though less important than the complete working out of ideas and procedures, the careful consideration of all effects and implications of proposed legislation, and the adjustment in advance of conflicts between departments, it is desirable, in the interest of conserving the time of Congress, that proposals for legislation which are presented in fully drafted form should be well drafted from the technical point of view (i. e., in form, language, and structure).

7. Though primary responsibility for the observance of the principles enumerated under 4, 5, and 6 should rest upon the departments initiating legislative proposals, it is too much to expect, in an organization so large and complex as the Executive Branch of the Federal Government, that these principles will be observed in all or nearly all cases, unless there is some central clearance of proposals for legislation prior to their presentation to the Congress. 8. "In the modern state most legislation is directed toward the creation or modification of administrative powers."3 The efficient functioning of the administrative departments depends to a very considerable degree upon the legislation applicable to them. There is a vital relationship between legislation and administrative management. Efficient administrative management is unthinkable without constant and detailed attention to the legislative activities of administrative departments and to legislative proposals affecting them.

W. Ivor Jennings, Cabinet Government (Cambridge: University Press, 1936), p. 177.

9. As the head of the unified Executive Branch of the Government contemplated in the Constitution, the President is or should be made primarily responsible for administrative management in the Federal Government. For the reasons stated under point 8, this responsibility makes it necessary that the President know what administrative departments are doing in the way of promoting or opposing legislation, and that he have an opportunity to prevent the presentation to Congress, as administration or departmental measures, of legislative proposals that conflict with his policies. This conclusion follows not only from the fact that the Constitution contemplates a single-headed Executive, but also from the express provision of the Constitution, article II, section 3, which makes it the duty of the President to "give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient."

10. The President cannot possibly perform his duties in relation to the legislative activities of administrative departments satisfactorily unless he is relieved of many of the details by people in whom he has confidence and who know his policies intimately. Similarly, he needs to have all issues of policy which he must decide presented in summary form, briefly and fairly.

11. It does not follow from the principles thus far set forth that all legislative proposals of administrative departments should be presented to the Congress as administration bills. There are good reasons for not identifying the administration with all legislative activities of administrative departments. Central clear

ance, however, is essential even for legislative proposals that are not presented as administration bills.

12. In addition to clearance on legislation initiated by departments, there is need for clearance on reports relating to proposed legislation that are made by departments to either House of Congress or to congressional committees and on appearances of officers and employees of administrative departments before congressional committees under circumstances in which their testimony is likely to commit

the administration of their departments for or against some pending bill. Such clearance on reports and testimony must be so conducted as to recognize and preserve the right of the Congress to get all the information on legislative proposals and the conduct of departments which it may desire and to which it is constitutionally entitled.

13. It is desirable that all bills introduced in the Congress, including those not initiated by administrative departments, be carefully examined by some central agency within the Executive Branch of the Government, to discover their probable effect upon the work of the several departments, with a view of timely notification to the interested departments. Such clearance would obviate the necessity of having each department employ checkers and observers to report upon what is happening in Congress.

14. Careful checking of all aspects of the bills passed by the Congress which affect the functioning of the Executive Branch of the Government is essential before these bills are signed by the President. This applies even to bills that were carefully checked prior to introduction, as bills commonly are greatly altered before final passage.

15. However the central clearance machinery on legislation in the Executive Branch of the Government may be set up, it is clear that it should function under the direct control of the President, because it so vitally affects the performance of some of the most important of his duties.

16. Though it is essential to recognize the respective limits of authority of the Executive and Legislative Branches of the Government, as prescribed in the Constitution, informal cooperation between them is in the interest of good government. The manner in which legislative proposals coming from the President or any administrative department should be presented to the Congress is a matter outside the scope of this report, but it should be recognized that in practically all cases consultation with committee chairmen and other congressional leaders is highly desirable.

Preparation of Legislative
Measures within Departments

Most of the larger administrative departments have some legislative measures in every session of the Congress Typically, these measures originate in the bureau which has jurisdiction over the subject matter, and very often a preliminary draft of the proposed legislation is prepared in the bureau before it is taken up with anyone outside. Ere long, however, the solicitor or counsel of the department is consulted, and the final work of bill drafting within the department generally is done by someone connected with the office of the solicitor or counsel.

Within departments there has been a growing realization of the desirability of centralizing responsibility for bill drafting in the counsel's office and of placing someone in this office definitely in charge of this work.

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The most complete development in this direction was the creation in the fall of 1934 of a legislative division within the office of the General Counsel of the Department of the Treasury. This division, functioning under the close supervision of the General Counsel, has not only drafted all Treasury bills before presentation to the Congress, but has had responsibility for closely watching this legislation after it is introduced and of working with the legislative draftsmen in preparing amendments desired by the congressional committees. The legislative division is also charged with the duty of ascertaining, well in advance of any session of the Congress, what proposals the several bureaus and the major field representatives of the Department have for changes in the laws which they administer, with the end in view of having all legislative proposals ready for introduction by the opening of the congressional session.

A somewhat similar step was taken in the Department of Commerce in 1935, when a young attorney, who had had some prior billdrafting experience, was added to the staff. In the same year a bill draftsman was added to the staff of the Solicitor of the Department of the Interior, under whom all legislative activities of the Department have been centralized. In the Department of Justice, legislative proposals are usually, in the first instance,

In recent years major administration revenue measures have not been presented to the Congress in fully drafted form, but the Treasury draftsmen have worked with the legislative draftsmen in putting these measures into bill form, as desired by the Ways and Means Committee.

drafted by or in the office of an Assistant Attorney General; but they are then always referred to a particular Special Assistant to the Attorney General, who has final responsibility for the drafting of all bills in which the Department is interested. In none of these three departments, however, does there appear to be quite so definite centralization of responsibility for bill drafting as in the Department of the Treasury.

In no other department is there anyone who is called a bill draftsman, but as has been noted, the drafting of bills to be presented to the Congress is nearly always considered to be a function of the solicitor or counsel, at least to the extent that someone connected with this office checks the drafting of all proposed legislation before it leaves the department. With the exceptions mentioned in the preceding paragraphs, however, bill drafting is not the major duty of any one person within the department, and in many departments there is no one who could possibly be regarded as an experienced bill draftsman.

Very generally, legislative proposals of administrative departments now pass over the desk of the Secretary or other departmental head and must have his approval before they are permitted to leave the department. At least most of the heads of executive departments check legislative proposals that originate within their departments quite closely and satisfy themselves that they are necessary and sound. In some departments, of which the Department of Commerce is an example, the heads of the departments make use of their administrative assistants to examine minutely the legislative proposals of their bureaus. In many, and probably most, cases the Secretary or other head of the department conducts one or more conferences to consider the proposed legislation, in which representatives from the initiating bureau and the counsel's office as well. as other executives in the department participate.

There are many stories on Capitol Hill of bills which are initiated by bureaus without the knowledge of the Secretary or other departmental head. That there are still instances of this kind is probable, but they are now comparatively rare and have been greatly reduced by the establishment of the clearance machinery, described hereafter, which has functioned in the last two sessions.

Such difficulties as still exist in this respect arise principally through friendships of people in administrative departments with Members of Congress. As a natural outgrowth of such friendships, legislative proposals that originate with some subordinate may be introduced with no prior knowledge of the head of the department, although vitally affecting the department. Such proposals often do not represent any attempt on the part of anyone to short circuit the regular procedure, and are seldom labeled in Congress as administration or departmental bills. If the present situation still presents a serious problem, which is doubtful, it can be curbed by congressional legislation similar to section 2 of the Budget and Accounting Act of 1921, which forbids any officer or employee of any administrative department to submit to the Congress or to any congressional committee any estimate or request for an appropriation or any suggestion for raising revenues.

Central Clearance in the First Session of the Seventy-fourth Congress (1935)

Since 1921 there has been central clearance of all bills originating in the Executive Branch of the Federal Government which involve finances. Such clearance is expressly required by section 2 of the Budget and Accounting Act, which forbids all administrative departments and the municipal government of the District of Columbia and their officers and employees to submit to the Congress or to any congressional committee (except at the express instructions of either House of Congress) any estimate or request for an appropriation or for an increase in any item of any such estimate or request, or any recommendation as to how the revenue needs of the Government shall be met.

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A plan for central clearance for other types of bills originating in administrative departments was initiated by the President in December 1934, and was in effect through the first session of the Seventy-fourth Congress. This plan provided that no proposal for legislation was to be submitted by any administrative department to the Congress until it had been cleared through the Bureau of the Budget or the National Emergency Council. All appropriation and revenue measures were to be submitted to the Bureau of the Budget and all other legislative proposals to the National Emergency Council. In the National Emergency Council the measures submitted were to be routed through three channels, all of them connected with this agency: The loan commit

The plan for clearance was announced by the President to the National Emergency Council at its meeting on Dec. 11, 1934, and 2 days later it was transmitted by the Executive Director of the National Emergency Council to the heads of all administrative departments. These instructions were supplemented on Apr. 23, 1935, by another letter of the Executive Director to departmental heads, which set forth no new policies but made it more specific that appropriation and revenue measures were to be cleared through the Director of the Budget, as required by the Budget and Accounting Act.

The plan also required submission to the National Emergency Council of all measures sponsored by departments and intended for introduction in State legislatures

tee, if the proposal concerned banking legislation; the industrial emergency committee, if it dealt with the future of the N. R. A.; and the Executive Director of the Council in all other cases.

It has not been possible to make any detailed study of the functioning of this clearance system in the Bureau of the Budget, but such a study has been made of the bill clearance work of the Executive Director of the National Emergency Council. A total of 170 proposals for legislation were submitted to this officer in the first session of Seventy-fourth Congress. These proposals came from eight Cabinet departments and five independent establishments and emergency agencies. Thirty-two of these measures were of such a character that the Executive Director deemed them to fall within the jurisdiction of the Bureau of the Budget and referred them to the Director of the Budget. The other 138 measures were transmitted to the President, with a recommendation for disposition from the Executive Director. Thereafter, the President, in most cases, sent the measures back to the National Emergency Council with his decision, which was then transmitted by the Executive Director to the initiating department. Only after having been approved by the President were the bills in question presented to the Congress.

Nearly all of these legislative proposals came to the Executive Director of the National Emergency Council fully drafted. Invariably they were accompanied by an explanatory memorandum, prepared by the initiating department, setting forth at some length the purposes of the proposed legislation. The Executive Director of the National Emergency Council, after examining the proposals, sent the entire file to the White House with a small slip attached to the top of the file which usually read, "No objection found to this as a departmental measure", but which in a few cases suggested some other disposition. From the White House the file came back to the National Emergency Council, generally with the notation "O. K. F. D. R." written by the President, beneath the recommendation of the Executive Director. This entire process, in most cases, consumed only a few days.

The Executive Director most energetically sought to get all administrative departments to submit to him their legislative proposals for clearance as required by the President's instructions. The large number of measures actually submitted in this session attests to considerable success, but most of the major administration bills did not pass through the clearance machinery. Clearance of most of the bills which were submitted to the Executive Director, moreover, seems to have been pretty much of

Among the measures of this session which did not pass through the National Emergency Council were the Social Security Act, the Public Utility Holding Company Act, the Motor Carrier Act, the Neutrality Act, and the Soil Conservation Act. No measure on which the President sent a message to Congress was cleared through the National Emergency Council.