a routine matter. The great majority were "approved for introduction as a departmental measure." Clearance in this session seems to have had for its principal objective to afford the President an opportunity to stop the introduction of any departmental bill that he did not approve, rather than the more careful working out of these measures and the reconciliation of conflicts between departments.

Central Clearance in the Second Session of the Seventy-fourth Congress (1936)

A revised plan for central clearance of the legislative activities of administrative departments was outlined by the President at a meeting of the National Emergency Council on December 17, 1935. This revised procedure was set forth in detail in Budget Circular No. 336, which is reproduced in full as an appendix to this report.

This Budget circular directed the heads of all departments to whom the Budget and Accounting Act is applicable to submit to the Director of the Budget all proposals for legislation to be presented to the Congress. It also directed them to clear with the Bureau of the Budget all reports or recommendations which they might make to the Congress or to any congressional committee, either on their own initiative or pursuant to a direction or request of either house of the Congress or of any congressional committee. Further, it required clearance with the Bureau of the Budget before any officer or employee of any administrative department made an appearance in his official capacity before any committee of the Congress, to forestall the possibility that he might commit the administration to a measure contrary to its general program. Clearance on legislative activities was thus considerably extended. In 1935 only proposed bills had to be submitted for clearance; in 1936 reports to the Congress and appearances in an official capacity as witnesses before congressional committees also had to be cleared.

Other changes related to procedure. In the 1935 session some matters were required to be presented to the Bureau of the Budget and others to the National Emergency Council, with resulting confusion. In the new procedure all departments were required to submit everything to the Bureau of the Budget, which was to refer all proposals for legislation that did not involve budget or financial matters to the Executive Director of the National Emergency Council. Measures thus referred were to be cleared by the Executive Director with the President, after which he was to report to the Bureau of the Budget whether or not these proposals were in accord with the "policy program of the President." This information was then to be relayed to the initiating department. Similarly, the Bureau of the Budget was to advise the initiating department whether

or not legislative proposals affecting finances were in accord with the "financial program of the President."

A total of 45 bills and 15 reports originating in administrative departments were referred to the Director of the National Emergency Council in this session. They came from 8 departments of Cabinet rank and 10 independent establishments and emergency agencies. Twenty-three of the 45 bills were approved by the President; 7 were disapproved; 1 was dropped by the initiating department; in 11 cases the departments were advised to use their own discretion; and in 3 cases no answer was received from the President after the proposal was transmitted to him. Of the 15 reports, 12 were approved by the President, 1 was dropped, and in 2 cases the departments were told to use their discretion. As in 1935, the President, in acting upon the matters transmitted to him by the Executive Director of the National Emeregency Council, in nearly every instance followed the suggestions made by that officer.

The total number of proposed bills which passed through the office of the Executive Director of the National Emergency Council was much smaller in the 1936 than in the 1935 session. This is partially explained by the fact that many of the bills upon which the Congress acted in this session were introduced in the prior session. As all bills submitted for clearance in this session were in the first instance sent to the Bureau of the Budget, it is also possible that some measures which included both financial and other provisions were not referred to the National Emergency Council, but were cleared with the President as to all of their provisions by the Budget Bureau. There is much reason to believe, however, that a major factor in the decrease in the number of measures cleared through the National Emergency Council was the failure of departments to comply with the requirements of the Budget circular. Very few of the principal acts of this congressional session were cleared with the Executive Director of the National Emergency Council. Nearly all of the clearance work of this officer in this session affected only minor

Of the Cabinet departments, Interior and Labor submitted no bills to the National Emergency Council in 1935, and Labor and the Post Office Departments submitted none in 1936. In neither session were any matters presented by such important independent establishments and emergency agencies as the Interstate Commerce Commission, the Federal Emergency Relief Administration, the Works Progress Admnistration, the Public Works Administration, or the Reconstruction Finance Corporation.

Among the acts of this session which either originated in administrative departments or in whose formulation such departments were major participants but which were never submitted to the Executive Director of the National Emergency Council were the following: The Soil Conservation and Domestic Allotment Act, the Rural Electrification Act, the act relating to the taxation of bank securities owned by the Reconstruction Finance Corporation, the Flood Control Act, the amendments to the Railway Labor Act, the Liquor Tax Administration Act, the amendments to the Migratory Bird Treaty Act, the Commodity Exchange Act, the Walsh-Healey Act, the act to provide a civil government for the Virgin Islands, and the Merchant Marine (Ship Subsidy) Act. Of all the major legislation of this session the only measures cleared through the Executive Director of the National Emergency Council were the bill for the continuance of the Electric Home and Farm Authority, the amendments to the Steamboat Inspection Act, the amendments to the Communications Act, and the amendments to the Securities Exchange Act relating to the regulation of unlisted securities sold by counter brokers.

departmental bills, and many bills even of this description were not cleared at all.

On the other hand, clearance of legislative measures through the Executive Director of the National Emergency Council meant much more in this than in the prior session. First, the draftsmanship of all bills referred to the Executive Director was carefully checked. Under an arrangement made with the Attorney General, bills the drafting of which the Executive Director felt could be improved were referred to a Special Assistant to the Attorney General, to be gone over in detail and, if necessary, to be redrafted in whole or in part. The suggested changes in the wording of bills were then taken up with the initiating department and in each instance accepted without question.

The Executive Director of the National Emergency Council also examined all bills most carefully to determine whether they in any manner affected other departments than those which initiated the measures and consulted these other departments to get their reactions. In many cases he persuaded departments to make significant changes in their bills to avoid the opposition of other departments, and in some instances clearance resulted in the complete abandonment of the proposed legislation.10

Similarly, clearance with the President was distinctly more comprehensive in 1936 than in 1935. Some trivial matters were disposed of by the Executive Director of the National Emergency Council without consulting the President, the Executive Director assuming the responsibility for saying that they were not in conflict with the President's policies; but all measures of importance were cleared with the President much as in the previous session. Unlike the procedure in that session, however, the Executive Director not only recommended to the President what action he ought to take on the proposals thus submitted, but also gave him a one-page summary of the suggested legislation, which included a clear statement of the policies at issue and the reactions of all interested departments.

Inquiry has revealed considerable complaint in administrative departments that clearance of departmental legislative proposals was slower in 1936 than in 1935, and there are accounts of

10 A good illustration of the actual functioning of clearance through the Executive Director of the National Emergency Council in this session is afforded by two bills relating to the acquisition of land in the District of Columbia, submitted, respectively, by the War Department and the National Capital Park and Planning Commission. When these bills were examined by the Executive Director, he concluded that a more general bill was desirable, and he asked the two interested agencies to get together and bring in a single, comprehensive bill dealing with the acquisition of land by Government departments in the District of Columbia. This was done, and thereafter the revised bill was sent to the Interior, Navy, and Treasury Departments for their comments. In this manner a single measure was prepared for introduction in the Congress, which otherwise would have had two bills on the same general subject in this session, and very probably more later on.

An illustration of such action is the bill which the Department of the Treasury submitted to give effect to a recent whaling convention. The Executive Director, after ascertaining from the State and Commerce Departments that the measure was satisfactory to them, advised the Director of the Budget to notify the Department of the Treasury to go ahead with the bill, without having sent the file to the White House. Early in the session, the Executive Director requested the Bureau of Budget not to send any measure to him which this bureau regarded as so trivial that the President ought not to be troubled with it.

what would seem to be unreasonable delays. From the examination of the files of the National Emergency Council, it would seem that these delays did not occur in this department. In most cases the Executive Director did his part of the work of clearance within 1 day. Even bills referred for redrafting to the Special Assistant to the Attorney General were generally cleared within a few days. Whatever delays occurred appear to have been due mainly to the fact that some measures were kept a long time in the Bureau of the Budget before they were referred to the Executive Director of the National Emergency Council-apparently because this Bureau has been understaffed.

Value and Limitations of Clearance
as Practiced in the Seventy-fourth Congress

Both the value and the limitations of central clearance as practiced in the Seventy-fourth Congress have been touched upon in the preceding account of the organization and functioning of the clearance machinery. On the value side are to be counted, first of all, the advantages to the initiating departments. Through resort to the clearance machinery they could make certain that in their proposals for legislation they were not running counter to the administration's policies, without having to trouble the President personally about these matters, many of them of minor importance. They also were assured that these measures would not have opposition from other departments once they were cleared in the regular manner. The requirements for clearance operated to make the initiating departments more careful in the preparation of their legislative proposals, for they knew that they would be scrutinized in detail by the clearance officers and, perhaps, by other departments. The clearance procedure also operated to give the head of the department a much more certain control over bills originating in his organization. Only the heads of departments were permitted to submit measures for clearance. This prevented bureau chiefs and officers further down the line from short-circuiting the heads of their departments and forced these department heads to interest themselves in and assume responsibility for legislation originating in their departments.

Even greater were the advantages of clearance to the Government as a whole. These advantages arose, in part, from the fact that the legislative proposals of administrative departments, naturally reflecting their particular points of view, were subjected to detailed examination by officers whose interests were those of the entire Government. Through the device of central clearance interested departments were also apprised, in numerous instances, of legislative proposals originating in other departments of which they probably would otherwise have heard nothing until intro

duced in the Congress. These departments were thereby enabled to present their points of view and to influence the legislation while still in its formative stage. In some cases, this doubtless avoided time-consuming conflicts before congressional committees, discreditable to the Executive Branch of the Government. Beyond question, at least some of the measures submitted were greatly improved through clearance, both in content and in form. Through this machinery the President was enabled to control to some degree the bills presented to the Congress by administrative departments, without having personally to go into the details of these proposals. At one and the same time, the President had more effective control over the measures submitted for clearance and had to devote less time to them than if they had been taken up with him directly, as departments previously were wont to do.

The most serious limitation of clearance as practiced in the Seventy-fourth Congress was that nearly all of the really important bills as well as many minor bills originating in the Executive Branch of the Government did not pass through this machinery. The instructions of the President, particularly in 1936, seemed to apply to all legislative activities of administrative departments, without exception. Actually, however, these instructions were applied as if they read that measures not cleared directly with the President should be cleared in the prescribed manner. Matters discussed with the President in person by a department head were not submitted for clearance, except in a few cases where the President specifically instructed the proponents that they should also clear their bills in the prescribed manner. The President's approval orally given, or read into his statements by the head of the initiating department, was deemed sufficient in most instances to authorize introduction of the contemplated legislation without anything further. Not only were nearly all of the measures about which the President sent special messages to the Congress (the major administration bills) exempted from clearance, but many lesser matters also escaped such checking. Some departments apparently paid no attention to the clearance orders and others submitted only their less important proposals, preferring to clear the legislation in which they were most interested directly with the President. The net result was that clearance as practiced in the Seventy-fourth Congress was restricted almost entirely to minor departmental bills.

Outstanding Defects in

Present Procedures and Their Consequences

The clearance machinery to date thus has been but a relatively minor factor in the legislative activities of administrative departments. Though important in demonstrating the possibilities of such clearance, it has had little

influence upon the handling of the major measures by which the Members of Congress and the public at large mainly judge the legislation which originates in the Executive Branch of the Government.

Not everything in the handling of these major measures has been wrong, but there is much room for improvement. Both on Capitol Hill and in the administrative departments, there are many stories about particular measures that are anything but complimentary to present procedures. Little attempt has been made to ascertain the truth or falsity of these stories, but the fact that there are so many of them and that they are widely believed suggests that where there is so much smoke there must be some fire.

Among the most common and apparently best founded criticisms of present procedures are the following:

1. Many measures that originate in the Executive Branch of the Government are poorly drafted and not well thought out. Of these two defects, the former is distinctly the less serious. Technical defects in draftsmanship can be remedied in the course of passage through Congress. Most congressional committees want the legislative draftsmen to check carefully the drafting of all measures they recommend; moreover, few bills of any importance ever pass without some revision. Though poor draftsmanship is a hindrance to bills originating in the Executive Branch of the Government, it is not nearly so serious as lack of thorough consideration of the policies recommended. Where ideas are completely and well worked out, the legislative draftsmen are qualified to express them in bill form; but where the proponents of legislation have only vague ideas of what they want or have not really thought through the program they are championing, it is often impossible to produce a workable bill. The draftsman's task is technical; all substantive provisions must come from the proponents or the Members of Congress.

2. Clashes between departments over bills that originate in the Executive Branch of the Government have been frequent and, generally, have had a harmful effect. Though many of the stories that are current about the very serious friction between bureaus and departments over pending bills are probably exaggerated, the fact that there often is such friction is undeniable. Bills have been initiated by administrative departments which other departments have fought to their utmost ability. In their least offensive form such clashes have been confined to the presentation of the opposing points of view in hearings before congressional committees; often they have not stopped there but have taken the form of extensive lobbying by the competing departments, akin to that practiced by rival private interests. Contests of this sort have created lasting friction between departments and have

more often tended to confuse the Members of Congress than to enlighten them. In a considerable number of cases the end result has been the defeat of legislation which probably would have passed had the differing points of view of the interested administrative departments been adjusted in advance of the introduction of the proposal in Congress.

There are situations in which the President as the head of the Executive Branch of the Government may not wish to advise all interested departments in advance of legislation which he intends to recommend. There are also situations in which the wisest handling of the differing points of view of departments is to submit them to the Congress for decision. Most of the conflicts that have actually occurred, however, were not due to these causes but to defective clearance or the complete lack of clearance. It is not uncommon that departments first learn of bills promoted by other departments which seriously affect them when these bills are introduced to the Congress, not because anyone intended that they should not be advised, but solely because the importance of advance clearance was overlooked or because the proponents did not realize that other departments were interested.

3. Administrative departments, even though not hostile to bills initiated by other departments, quite often present amendments to these bills without clearing them with the initiating departments or through the clearance machinery established by the President. Very generally such amendments relate to matters overlooked by the initiating department, which omissions might have been avoided through adequate clearance before introduction. At times, however, tactics of this kind are resorted to to get through pet ideas which standing alone would have little chance of passage.

4. There is some feeling among members of Congress that they are not consulted as much as they should be in advance of the introduction of legislation which originates in the Executive Branch of the Government. The President generally has contacted administration leaders in the Congress in advance of the presentation of major administration measures and his practice in this respect is reasonably satisfactory to the Members. There is much complaint, however, about bills prepared in administrative departments which are handed fully drafted to committee chairmen for introduction, without any prior consultation and with but little explanation other than that the administration wants these measures to be passed.

Advance consultation calls for delicate strategy which must vary with the committees and Members of Congress involved, the needs of the time, and prevailing public opinion. Members of Congress resent abrupt treatment far less when a great emergency renders prompt action vitally necessary. Unquestionably, also, there are great differences between committees and committee chairmen in this respect. At the present time there are committees in the House of Representatives that refuse to consider any proposal from an administrative department which does not come to them fully drafted, whereas other committees demand that they be consulted before any work at all is done in preparation of such measures. The most effective handling of the legislative proposals that originate in the Executive Branch of the Government will take into account such preferences and the conditions of the time. There is, undoubtedly, much room for improvement in this respect.

5. There is entirely lacking at the present time a central service to advise the several departments in the Executive Branch of the Government about bills in the Congress of peculiar interest to them. Departments, of course, know about measures which they originate, but frequently bills are introduced which affect them and of which they have no advance information. At the present time most departments detail some one in their organization to watch legislation, but even so they often discover bills of great importance to them only accidentally.12 Such separate checking of legislation, moreover, involves needless duplication, which could easily be avoided.

6. The present procedure in presenting the point of view of the Executive Branch of the Government or departments thereof on pending legislation is often confusing to the Members of Congress and is therefore ineffectual. Most departments detail some one in their organization to "look out" for bills in Congress which they initiated or in which they are very much interested. These are usually subordinates who cannot speak for their departments except very generally and who have no authority to bind them. Some of these representatives of departments have indulged in buttonhole lobbying tactics very annoying to Members of Congress. Probably in only a minority of all cases have they been really helpful in the congressional consideration of legislation affecting administrative departments.

12 Employees detailed to watch legislation for departments usually have many other duties and so are very apt not to read bills in their entirety unless the title suggests that their department is affected. As is well known, titles often do not disclose the entire content of the bills.

State Governments 13

The problems of the Federal Government differ in many respects from those of the States, but their experience deserves some consideration in the development of sound policies and procedures in relation to the legislative activities of departments connected with the Executive Branch of the Federal Government. In the States, as in the Federal Government, much legislation originates in administrative departments. Though in many States the constitutions do not so clearly contemplate a single executive as does the Federal Constitution, popular opinion nevertheless holds the Governors responsible for everything that the administrative departments may do. Consequently, the Governors have had to concern themselves with the legislative activities of the administrative departments quite as much as has the President.

Many Governors have met this situation by assuming leadership in legislation and insisting upon clearance through their offices of the legislative proposals of administrative departments. As conditions have developed, Governors are judged far more by their leadership in legislation than by the manner in which they discharge any of their other duties. For their own protection, as well as the proper performance of the administrative functions of the State government, all strong Governors in recent decades have kept a close check upon the legislative activities of administrative departments and have insisted upon controlling them as far as possible.

Examination of the annual or biennial messages of Governors in many States discloses that it is a common procedure for the several State departments to transmit to the Governor their recommendations for legislation, which he then includes in his message, often with his strong endorsement. In addition, Governors very frequently send special messages to their legislatures recommending or opposing specific legislation in which the administrative departments

13 The information presented in this subsection is based upon a detailed study of the legislative messages of Governors Smith, Roosevelt, and Lehman of New York, 1928 to 1936; Governor Cross of Connecticut, 1936; Governors White and Davey of Ohio, 1933 and 1935; Governor Byrd of Virginia, 1928; Governor Fitzgerald of Michigan, 1935; Governor McNutt of Indiana, 1935; Governor Olson of Minnesota, 1933 and 1935; and Gov. ernor Landon of Kansas, 1933; and upon the author's familiarity with the legislative situation in Wisconsin, based upon 12 years of service as chief of the Wisconsin Legislative Reference Library. In addition, the legis lative manuals or blue books of all States were examined for evidence of the existence of an official attached to the Governor's office to assist him in legislative matters.

are interested. Commonly, also, the Governors do not confine their work in relation to legislation to general recommendations but have complete bills drafted which they either send along with their messages or get some administration leader or committee to introduce.

To facilitate the discharge of their legislative duties, a number of States have given their Governors special assistants. In at least four States there is now in the Governor's office a subordinate known as the counsel, executive counsel, or legal adviser, whose duties relate mainly, if not exclusively, to the handling of legislation. In New York a counsel has been attached to the Governor's office as a fulltime permanent employee since 1900, and in 1929 a legislative secretary was added. In Wisconsin each Governor since 1915 has named an executive counsel to assist him with matters of legislation during legislative sessions. In Alabama there has been a legal adviser to the Governor since 1931. In Pennsylvania the Governor had in his office in the same year both a counsel and an expert economist, as well as a number of investigators. Elsewhere similar functions are performed by the chief of the legislative reference service or by an assistant attorney general detailed to the Governor to assist him in matters of legislation during sessions.14

In the States much more than in the Federal Government, it has come to be recognized that the chief executive must keep a close check upon the legislative activities of administrative departments. This seems to be becoming a recognized and accepted responsibility of the Governors in nearly all States, and particularly in States in which there has been a reorganization of the administrative departments providing for a unified administration with the Governor as the chief executive. This is the type of organization contemplated in the Federal Constitution, but the control over the legislative activities of the administrative departments of the Federal Government, thus far, has been much less close than prevails in many States.

14 In Connecticut the same assistant attorney general has been assigned to this duty for many years. In Illinois one of the principal functions of the chief of the legislative reference bureau is to advise the Governor on bills which have passed the legislature and also to assist him in preparing bills which he presents to the legislature. It is probable that similar arrangements exist in many other States. It should be noted also that the secretary to the Governor very often is an attorney who devotes much of his time during legislative sessions to assisting the Governor in legislative matters.