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impinges upon the interests and rights of individuals. Some astute observers have referred to congressional investigating committees as the greatest seats of judgment in the land. One has only to reflect upon what public opinion recently did to Maj. Gen. Bennett E. Meyers after his exposure by the Senate War Investigating Committee to see the logic of that view.

In this period when the need for fearless, impartial, and well-balanced inquiries is greater than ever before, however, the power of turning on the light is being gravely abused. We do not believe that any objective observer will deny that the antics of the Brewster committee and the persecution tactics of the Committee on Un-American Activities have brought the investigative function of Congress into disrepute. Can that damage be repaired? Cannot the investigative function be retained as a power for the effectuation of good government without permitting it to be used as an instrument of oppression? With the counsel of numerous experts and other thoughtful students of government, the Washington Post hopes to give, in subsequent editorials, specific answers to these questions.

[January 22, 1948]

TURNING ON THE LIGHT-No. II

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Abuses have crept into congressional investigations at a time when the investigative process is more important than ever before. Congress finds itself in need of factual and well balanced information in many different fields. It must make use of the investigative function in order to save itself from acting in ignorance. What it gets from some of its investigators, however, is biased half-truths built up from distorted evidence. Other committees resort to such questionable meth. ods as to incite widespread reaction against what they are undertaking to do.

One congressional investigator conducting hearings on the Forest Service is reported to have told a witness that he did not wish to have any testimony favorable to that agency; he was seeking only adverse information. Representative Clare Hoffman recently sought to make his investigating power as chairman of a House Subcommittee on "education" into a club for intimidation of newspapermen. First he requested two representatives of the Washington Star to answer questions about an editorial that he did not like. Then he summoned Mr. Alfred Friendly of the Washington Post, swore him as a witness and grilled him as to the sources of a news story he had written. About the same time the New York Herald Tribune quoted Mr. Hoffman as saying that he intended to call to the witness stand all newspapermen who write articles which, in his opinion, accuse Members of Congress of "unfair or disreputable conduct."

The "you're a liar" contest between Senator Owen Brewster, chairman of the Senate War Investigating Committee, and Howard Hughes is so fresh in the public memory that no review of the circumstances is required here. The important fact to remember is that this congressional inquiry was permitted to descend to the level of a personal wrangle. Such misuse of the investigative power promptly reacted against Senator Brewster in the public mind. The unfortunate thing is that the committee and Congress itself suffered a slump in prestige along with the Senator who abused his power.

Out in Hollywood last August Irving McCann, counsel for a congressional investigating subcommittee, engaged in a rude shouting contest with Joseph A. Padway (now deceased) general counsel for the AFL, then seized him by the throat, according to news reports, and struck him three times. Other committees have compelled witnesses to testify in secret, or, having summoned witnesses to testify, have denied them the right to state their own views. Some legislators have so utterly departed from the practices of fair play as to make their charges first and then seek corroboration through use of the investigative machinery. And the House Committee on Un-American Activities is seeking-to imprison 10 alleged Communists for refusing to testify against themselves, even though the committee had, from other sources, all the information it needed properly to enlighten the public.

In our opinion, these undemocratic methods ought to be corrected, both as a matter of treating citizens fairly and as a means of preserving the usefulness of congressional investigative machinery.

7213848-14

[February 1, 1948]

TURNING ON THE LIGHT-No. III

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Can the courts protect citizens who are called before congressional investigating committees and treated unfairly? Many persons, thinking so, have carried their complaints to the courts. In general, however, the courts have upheld the power of congressional bodies to conduct their own investigations in their own way.

The issue of witnesses' rights against an investigating committee's demands arises, of course, when the witness is cited for contempt. In its early days Congress itself ordered the arrest and confinement of recalcitrant witnesses. Since 1857 such cases have been tried in the courts under an act making it a criminal offense to refuse to testify before a congressional committee. Every witness cited for contempt of Congress is thus assured a judicial hearing, but seldom do they find any relief.

The reason for this is readily apparent. Under the Constitution Congress exercises the legislative function within a tremendously broad scope of granted powers. To perform this function properly it must have the power of inquiry, and the power of inquiry necessarily carries with it the power to compel the giving of testimony.

The classic Supreme Court decision on this point came in Anderson v. Dunn. The argument for denial of the power to punish for contempt, the Court said, "leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it." The Court was following the unassailable logic of a great constitutional authority, Justice Joseph Story, when he asked: "If the legislature possesses a right of choice as to the means, who can limit that choice?"

In a later flagrant case the Court did agree that the investigating power of Congress was not unlimited. The House of Representatives ordered an inquiry into the nature and history of a real estate pool. A partner in the firm of Kilbourn & Latta refused to answer certain questions about the private affairs of his business. When his citation for contempt reached the Supreme Court, it decided: "No person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire... Neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen."

Tempting though it is to seize this case as a precedent for judicial restraints upon the contempt power of Congress, we think it is a weak reed on which to lean. Later Supreme Court decisions have made it clear that even where no intention of legislating or of bringing impeachment proceedings is stated in a resolution ordering an investigation, such a purpose on the part of Congress may be presumed. Congress may investigate now with only a vague thought of possible legislation in the future. And "a legislative inquiry may be as broad, as searching, and as exhaustive," the Court has said in another case, "as is necessary to make effective the constitutional powers of Congress."

It is possible, of course, that the Supreme Court may again restrain some extreme misuse of the investigative power to pry into personal beliefs and private affairs, as it did in Kilbourn v. Thompson. But it would be a crime against democracy to impose on Congress any restrictions that would hinder such inquiries as those which exposed the Galphin claim scandal in 1850, the Credit Mobilier scandal of 1872, the Teapot Dome scandal of the 1920's, or the Bennett Meyers scandal of 1947. The investigative power of Congress is the strongest check upon corruption in the executive departments. It is the most effective means of focusing public opinion upon conditions of national concern within our community life. Under our constitutional system it cannot be, and should not be, restrained in any substantial manner by the judiciary. We think the correction of abuses will have to come from within the Congress itself.

[February 12, 1948]

TURNING ON THE LIGHT-No. IV

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Our conclusion in the last editorial of this series was that the correction of abuses in the conduct of congressional investigations will have to come from Congress itself. Being one of the three coordinate branches in our system of government, Congress cannot be put into a strait-jacket by either the courts or the President. Each House makes its own rules, sets its own standards of conduct, and for the most part is answerable only to the people. The most effective way to curb abuses of the investigatory power, therefore, is to induce Congress to put its own house in order.

The first step, in our opinion, is to confine investigations to regular standing committees. In the past the investigating power has been used in a sporadic and sometimes reckless manner. Some Senators and Representatives have made a practice of demanding a congressional investigation every time they have seen an opportunity to discredit a political or personal foe. It has not been uncommon for a legislator to air his charges on the floor, to induce his colleagues to create a special investigating committee, to have himself appointed chairman of it, and then set out to collect evidence to substantiate the charges he has already made. Such an inquiry is biased from the very beginning. It tends to discredit the legislators who make it, the investigative process, and even Congress itself.

This type of inquiry can be avoided in very large measure by turning over investigations to the regular standing committees, as contemplated by the La Follette-Monroney Act, which reorganized the congressional committee structure. Fortunately, special committees seem to be disappearing on Capitol Hill. The Senate has only one of any national significance, its Small Business Committee. Its Committee to Investigate National Defense has been appropriately merged into the Committee on Expenditures in the Executive Departments. The House has only a Small Business Committee, a committee investigating the need for newsprint and paper and the Select Committee on Foreign Aid. Of course, the Un-American Activities Committee continues to function as a select committee, although it has been accorded recognition as a standing committee.

Under the Reorganiztion Act, every standing committee of the Senate has power to investigate "any matter within its jurisdiction" at any time. The investigative process is not to be a sporadic chase for sensational data, but a more persistent effort to bring to light information that will be useful to the committee in studying legislation or performing other duties. There is the added advantage that the investigations will be made by men familiar with the field of activities under scrutiny. Probably even more important is the discipline that can be applied by the standing committees when investigators go off on a tangent, descend to persecution tactics, or indulge in mere whitewashing operations. Select investigating committees have often acted as if they had no obligation to Congress as a whole or to any other group. Investigators who are subject to check by the standing committees of which they are a part will at least be under increased pressure to function as a part of a responsible legislative team.

[February 16, 1948]

TURNING ON THE LIGHT-No. V

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Congressional investigators exercise power that can be matched by few other officials in any branch of Government. They are in a position not merely to expose corruption and disgrace unfaithful public officials, but also to destroy the reputations of private individuals. They may compel men to testify or go to jail. They may focus national attention upon a man's foibles or his virtues. They may ruin organizations and frequently force the hands of executive officials. Indeed, the investigating committee of Congress has been called the most powerful judg

ment seat in America.

In the light of these facts the selection of the chairman of an investigating committee ought to be no less careful than the selection of the Chief Justice of the United States. To him will be entrusted, in large measure, the duty of finding facts on the basis of which legislation may be enacted. In his keeping will be the rights, the reputations and the future welfare of an undetermined number of citizens. In short, the power to investigate before a Nation-wide audience is the power to exalt or to destroy, and it can be safely entrusted only to men of pro ven integrity, ability, and sound judgment.

Practice has fallen woefully short of this ideal in various instances. Some years ago the House of Representatives permitted Representative Cox to head a committee investigating the Federal Communications Commission after the FCC had exposed his receipt of money from a radio broadcaster, whose case he had pleaded before the FCC. Investigator Cox was about as judicial as a prize fighter in the ring. Senator Brewster brought the investigative process into disrepute by using his great power as head of the Senate War Investigating Committee for personal or political advantage. Howard Hughes charged Mr. Brewster with offering to suppress the investigation of Mr. Hughes' company if the latter would agree to a merger with the Pan American Airways and accept the Senator's community air-line bill. We do not know whether that charge is true or false, but we do know that Mr. Brewster put himself into an utterly untenable position when, as a partisan of a particular interest, he held to the chairmanship of this powerful committee. To be sure, he turned over the active conduct of the investigation to Senator Ferguson, but that did not save the Hughes inquiry from being discredited in the public mind as an attempt to use a tremendous public power for narrow personal purposes.

Most judges make a routine practice of disqualifying themselves when a case in which they might be suspected of bias comes before their court. They break away from the interests they had as lawyers and assume a strictly judicial attitude. No less should be expected, in our opinion, of the chairmen of powerful investigating committees. Nor should any chairman be in a position where it might be possible for him to shake down witnesses or potential witnesses before his committee. Like Caesar's wife, legislators exercising this great power ought to be above suspicion, Yet we find Representative J. Parnell Thomas, spearhead of probes by the Un-American Activities Committee which vitally affect many business groups, listing himself in the Congressional Directory as an insurance broker. The fact is that chairmanships of investigative committees have been distributed with alarming disregard for the fitness of the individual to conduct an impartial and disinterested inquiry. Here is one of the weakest aspects of congressional fact-finding to date, and unless it is corrected this powerful tool of democracy will continue to be dangerously abused.

[February 18, 1948]

TURNING ON THE LIGHT-NO. VI

CONGRESSIONAL INQUIRIES SHOULD BE DEDIACTED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Our survey of this problem suggests the need for a code of fair procedure for congressional investigations. Such a code would have to be enacted, of course, by Congress itself. We are aware of the fact that even the mention of a code of fair procedure will evoke a chorus of protests from people who think that the purpose must necessarily be to hamstring the investigative process. But we have no such purpose in mind, as will be evident from the nature of the rules to be suggested. We do not need to go to the courts for such a code. Indeed, it should be emphasized at once that court procedure is inapplicable to congressional inquiries. One pointed criticism of such investigations is that they have tended to encroach upon the realm of grand juries and judicial tribunals. Our view is that legislative investigations should be held rigidly to the informative function. And the best guide to effective work in this field is what our best investigative committees have done in the past.

One of the greatest investigations ever conducted in this country was the Armstrong committee's exposure of the insurance scandals in New York back in 1905. With Charles E. Hughes as counsel, it was a model of fairness as well as a fearless uncovering of corruption. The Teapot Dome investigation of the

twenties, with Owen J. Roberts (later Justice of the Supreme Court) as counsel, was a model of efficiency. In 1933 Senator Fletcher of the Senate Banking Committee conducted a fair and fruitful inquiry, with Ferdinand Pecora as counsel, which led to creation of the Securities and Exchange Commission. Scrupulous regard for decency and democratic rights also marked the inquiry into railway holding companies, under direction of former Senator Wheeler, with Max Lowenthal as counsel. More recently, of course, the Truman committee admirably illustrated the constructive use of the investigative power.

Harry S. Truman (then a Senator from Missouri) launched his investigation of the war effort, with congressional approval but sharp opposition from the White House. Within a few months, however, the executive branch was almost as pleased with the results as was Congress. Mr. Truman hired Hugh Fulton as counsel on advice from the Department of Justice. He sought only facts. He shunned publicity-hunting and partisanship. Not only did the committee treat witnesses fairly; it went further and submitted its reports to officials under fire so that they could correct any slip that the committee or its staff might have made. The naked facts remaining could not be refuted; so they hit inefficiency with devastating impact. This bipartisan committee put out 40 important reports, with scarcely a dissenting vote and no minority reports. So effective was its exposure of weakness in the war effort that mere indications that facts would be reported to the Truman Committee brought quick action on the part of negligent or arbitrary agency heads.

This well-run committee contributed immeasurably to winning the war as well as to Mr. Truman's stature. It is largely responsible for his being in the White House today. In other words, a nonpartisan and undramatic investigation efficiently conducted seems to add far more to a legislator's reputation than a demagogic flight into sensationalism. All that Congress needs to do to keep its investigations on a high plane, in our opinion, is to write into a code of fair practice the methods already proved to be fair and practicable by the best investigating committees of the past.

[February 19, 1948]

TURNING ON THE LIGHT NO. VII

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Because many congressional investigations have been motivated by politics, it is often assumed that no restraint can be imposed on the partisanship of investigators. We do not share that view. As previously noted, the most successful investigations have been those which have subordinated politics to a public demand for facts. When the facts have been brought forth, they may be more useful to one party than another. But if an investigation is conducted in a partisan manner, it is not likely to be really useful to anyone; for it cannot be depended upon to uncover the truth, the whole truth and nothing but the truth. Facts will be blurred by smearing, which may be as detrimental to the smear artists themselves as to their victims.

It would be foolish, of course, to try to take politics out of the legislative process. Political differences are the essence of democracy. Intelligent men who are serving the public interest, however, try to confine their differences to the interpretation of facts and to the shaping of policy on the basis of facts. Only chaos results from a biased or incompetent search for the facts themselves. And it is in this realm of fact-finding that the congressional investigating committee necessarily functions.

In our opinion, therefore, the proposed code of fair procedure for congressional investigations should include a rule requiring all such investigations to be conducted in a nonpartisan manner. It is true that each investigating committee would put its own interpretation on that restraint. Smearsmen cannot be transformed into fair-minded fact-finders by a rule. Nevertheless, such a rule would give the public, the press, and Congress itself a measuring rod by which to judge the performance of each group of investigators. Partisanship in the investigative process would thus be more readily apparent and more widely condemned, and pressure of this sort is after all the most reliable weapon against the abuse of any governing power.

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