ment first and provided that it will become effective after enactment of state legislation (e.g., Costilla Creek Compact, 77 Stat. 350).

In at least one case Congress specifically conditioned its consent on the adoption of an amendment by the party states (Washington Metropolitan Area Trausit Regulation Compact, 76 Stat. 764). The states passed the amending legislation desired by Congress (Chap. 114 Maryland Laws of 1962; Virginia Code 56529,530).

Where a Federal representative has been required by Congress the usual procedure has been for Congress to pass legislation authorizing such representative to participate in the negotiations between the states. Then when negotiations are completed another Federal statute is passed consenting to the compact (e.g., Klamath River Basin, 69 Stat, 613, 71 Stat. 497).

Research fails to disclose a single case where any state or province has been excluded from a compact without the agreement of the remaining states. Neither does research disclose any case where any significant change in an interstate compact became effective without resubmission of the agreement to the member states.

It is clear that if any one of the proposed bills were passed the Great Lakes Commission would have no legal existence until four states passed new legislation (Art. II, par. A).

VI. The passage of any one of the Bills would violate the First and Tenth Amendments to the Constitution at least as far as member states not requesting Congressional Consent are concerned. To the best of our knowledge, no state acting through its legislature has requested consent.

The bills specifically provide that the Great Lakes Commission shall be solely a consultative and recommendatory agency. As originally proposed by the State of Michigan in 1955 the Commission was to be solely advisory. The statute by which New York joined the Commission specifically provided that the organization was to be "advisory" (L. 1960 c. 643). Its functions as defined in the socalled Great Lakes "compact" are limited to the collection of data, the consideration of mutual problems and the making of reports and recommendations. (Hearings, supra, pp. 6, 7, 10, 11, 12). All such functions are subject to the proviso of Article VI, paragraph N that "No action of the Commission shall have the force of law in, or be binding upon, any party state."

Nevertheless the proposed bills would drastically curtail the Commission's right to consult with, make recommendations to or even to communicate with any agency outside the United States.

Limitations on the right of the delegates to the Great Lakes Commission to express their opinions to the Canadian Government or to the Governments of the Provinces which have jurisdiction over the entire northern side of the Great Lakes-St. Lawrence Basin obviously interfere with their rights of free speech, assembly and association guaranteed by the First Amendment to the Constitution.

The fact that the delegates may be state officials does not justify any such interference with their constitutional rights. (Wood v. Georgia, 370 U.S. 375). No doubt the reason this Committee and the Senate Committee recommended in 1958 that only partial consent be given to the interstate agreement was to protect the United States Department of State against interference in the conduct of foreign affairs. However the language of the bills goes much farther than that.

Any possible interference by the Commission in the conduct of American foreign affairs is already covered by the United States Criminal Code which prohibits any correspondence with a foreign government "with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States." (18 U.S.C. § 953). That statute, which was enacted in 1799, appears not to have been enforced since the Civil War. It has been criticized as too broad and vague and very likely unconstitutional (Waldron v. British Petroleum Company, 231 F. Supp. 72, 88-89). However it is much less stringent than the proposed Consent Bills.

When a group of states enters into an agreement which does not as a matter of law come within the provisions of Article I § 10 of the Constitution (the Compact Clause) and consent of Congress is therefore unnecessary, states which do not request and do not want congressional consent should not be construed to have agreed to be bound by any conditions which Congress may impose. Thus

if one of the proposed consent bills were passed, a state not asking consent could well contend that its rights under the First and Tenth Amendments of the Constitution had been violated.

As far as we know none of the States which are party to the so-called compact has legislatively asked Congressional Consent.

The proposed consent bills would infringe the right of commission delegates to engage in "solely consultative and recommendatory" activities protected by the First Amendment, and the basic right guaranteed to the states by the Tenth Amendment to manage their own affairs as they see fit so long as they do not encroach upon the constitutional rights of their citizens or the constitutionally defined supremacy of the United States.

VII. If the Great Lakes Commission receives specific congressional consent and thus becomes a federally-oriented entity it will be an inadequate, unneces sary partial duplicate of the Great Lakes Basin Commission now in the process of being organized under the Water Resources Planning Act of 1965. However as a strictly state-oriented organization without federal representation and without federal approval the commission can be useful in articulating the common interests of the member states and presenting them for the consideration of Congress and the Executive Department of the Federal Government.

The Water Resources Planning Act of 1965 (Public Law 89-80, 79 Stat. 24) provides for the creation of multi-state commissions to serve as agencies for coordinating federal, state and local water resource planning, with the following members:

"(a) A chairman appointed by the President who shall also serve as chairman and coordinating officer of the Federal members of the Commission ***:

"(b) One member from each Federal department or independent agency de termined by the President to have a substantial interest in the work to be undertaken by the commission, such member to be appointed by the head of such department or independent agency

"(c) One member from each State which lies wholly ar partially within the area, river basin, or group of river basins for which the commission is estab lished. ***;

(d) One member appointed by any interstate agency created by an interstate compact to which consent of Congress has been given, and whose jurisdic tion extends to the waters of the area, river basin, or group of river basins for which the river basin commission is created:

"(e) When deemed appropriate by the President, one member, who shall be appointed by the President, from the United States section of any international commission created by a treaty to which the consent of the Senate has been given. and whose jurisdiction extends to the waters of the area, river basin, or group of river basins for which the river basin commission is established."

The governors of the eight Great Lakes states have already requested that such a river basin commission be established for their area. It undoubtedly will be set up in the very near future.

In addition to the Chairman appointed by the President and the members from the eight states, it may be expected to have representatives from the Departments of Health, Education & Welfare, Interior and Commerce, the Federal Power Commission, the Corps of Engineers, the new Department of Transportation, if one is established, and the International Joint Commission.

Its functions will be similar to the present Great Lakes Commission, except that the new commission's recommendations will carry much more weight. Indoubtedly in many cases they will be given the force of law through the participating federal departments' regulatory and rule making powers.

The only reason for the continued existence of the present commission is that it is solely an organization of states, and as such can present the points of view of the member states as distinguished from those of the Federal Government on Basin problems.

If the proposed consent bills were passed the character of the organization would be changed. It would have to report to the President and the Congress and would be allowed to talk to Canadians only through the State Department. Even if a Federal Representative were not added, as the Zablocki bill provides, the Commission would be almost as federally-oriented as the river-basin commission organized under the Water Resources Planning Act, and would be a partial duplicate of that commission.

Obviously it would be of much more value as a strictly state-oriented organi

zation.

CONCLUSION

The proposed consent bills recognize and in fact emphasize that the "Great Lakes Basin Compact" established a "Great Lakes Commission" which is strictly advisory and consultative. There is no reason to seek congressional approval unless there is an intent to change the character of the organization and broaden its powers. That would require action by each member state.

The minority report to the House of Representatives in the 85th Congress made the following argument against the passage of consent legislation which we believe applies even more forcefully now, eleven years after the "compact" was entered into and the commission went into operation :

"We have never received from the proponents the answer to the question 'What do you want to do after Congress consents that you cannot do now?'

"If the answer is 'nothing' then consent is unnecessary. If the answer is 'encroach upon or interfere with individual States and the Federal Government', then consent should be withheld.

"The bill should be defeated" (H. Rept. 2587 85th Cong. 2d Sess. p. 8).

Chairman MORGAN. I want to congratulate you on your very able presentation of your case here today. There is one issue that bothers me: I would like to know where the State of New York stands on this legislation. I understand that the State legislature has ratified the compact. I read your statement last night. On page 18 you refer to a telegram that was sent to me in 1958 supporting similar legislation and at that time the Governor of the State of New York was Governor Harriman. This telegram appears on page 97 of the 1958 hearings, and I believe it has been incorporated in the hearings this year by Mr. Olds last week. On page 19 of your statement you say the New York delegation of the Great Lakes Commission is opposed to congressional consent.

Mr. Fitzpatrick, do you speak for the Governor or do you speak for the New York Legislature on this legislation or do you speak for the Power Authority?

Mr. FITZPATRICK. I would be presumptuous to speak for the Governor or the legislature. I speak for the Power Authority. I think with respect to the position of New York State and with respect to the past history the thing that is important to remember is that what was before the New York State Legislature was the question of whether we should cooperate with the other States in making a common study of our problems of mutual interest. There is everything that has been said and nothing that has been unsaid here in these hearings so far that I have read or seen which implies or states that this committee has any other function other than to cooperate, to exchange information, and to make recommendations. Initially the power authority was opposed even to the earlier bills but when it was explained and fully set forth that nothing was to be written into this legislation which would do anything more than set up a cooperative body, Mr. Farbstein, of the type we had on interstate cooperation

Mr. FARBSTEIN. Does the present Commission have authority to sue, to be sued, to acquire, convey real and personal property

Mr. FITZPATRICK. Negative.

Mr. FARBSTEIN. If the Congress should ratify this or give its consent, would it become a legal entity with all these powers and rights and authorities?

Mr. FITZPATRICK. No, sir.

Chairman MORGAN. The Chair would like to use the rest of his time,
Ir. Farbstein. The witness can't yield on my time.

Mr. FARBSTEIN. I am sorry.

It seems to me that is the crux of the problem.

Chairman MORGAN. Will the gentleman from New York reserve those questions to his own time?

Mr. FITZPATRICK. Did I finish answering your question?
Chairman MORGAN. Yes, sir.

Mr. Fitzpatrick, I took your statement home last night and I came back this morning with the understanding that the power authority appears to take the position that congressional approval is desirable in matters that concern the power authority but object to such proval on other matters involving cooperation among the States bordering the Great Lakes; is that true?

ар

Mr. FITZPATRICK. No, sir. We feel we are doing nothing at all which requires congressional approval. In other words, the dealings that we are now having are dealings very similar to those that are being conducted by multiple bodies throughout the United States. We know of no consent that is required from Congress. We have been very careful to avoid protocol in dealing with formal matters by going specifically through the International Joint Commission. We feel. Mr. Chairman, we should be able to argue our own case before the International Joint Commission without the intermediary of the State Department.

Chairman MORGAN. Mr. Fitzpatrick, does this power authority have any objection to the Great Lakes Commission cooperating of such matters as beach erosion, navigation, port facilities, fisheries!

Mr. FITZPATRICK. We have no objection to the State's cooperating in studying and making recommendations with respect to any subject which is within the reasonable realm of governmental inquiry. The State of New York and no one of the eight States has ever been presented with a suggestion that this group should have authority to actually do anything in any one of these areas. I think if they did they might be usurping the authority of the States or the Congress Chairman MORGAN. If these States want to cooperate on such matters, should not they ask for congressional consent in accordance with the Constitution of the United States?

Mr. FITZPATRICK. No, sir; I don't think it is necessary or desirable. In the first place, the law specifically states that congressional consent is reserved and required for a compact. And the definition of whats a compact has been, I think, well set forth in the Supreme Court deci sions, and those are those areas which would potentially infringe upon the sovereignty of the United States of America. I say this respect fully, I don't think the Foreign Affairs Committee of this House of Representatives would want to have appearing before it asking for congressional consent, every group of States which were banding together, for instance, to have a bridge or port authority or a water control authority.

Chairman MORGAN. Mr. Fitzpatrick, let me remind you that we held hearings in 1958 on the Great Lakes compact bill. I had the Library of Congress make a study on all State compacts approved by Congress up to that time. It was printed in the 1958 hearings. There were 155 such compacts in effect in 1958. I called the Congressional Library again and asked for a further study. They tell me now there

are 208 State compacts. That is quite an increase since 1958. The committees of the House meet on compacts quite often down here.

(See p. 117 for list of acts of Congress authorizing or ratifying interstate compacts or other agreements between States.)

Mr. FITZPATRICK. Let me make a distinction if I may. I haven't seen the list of 200 or anything else. I think it is perfectly clear that if States are entering into compacts or agreements which infringe or potentially infringe upon the sovereignty of the United States of America, Congress has a legitimate reason to look at them and approve or disapprove of them by giving its consent. I respectfully say this, without having looked at them, have you made any request to see which are purely advisory bodies?

Chairman MORGAN. Some are functional bodies.

Mr. FITZPATRICK. If they are functional I think consent is necessary. This Commission does nothing but advise.

Chairman MORGAN. Mr. Zablocki just tells me there are 15 compacts in which the State of New York participates.

Mr. FITZPATRICK. We have many such bodies in the State of New York. Most of them do things. For instance, the bridge commission collects tolls. The port authority holds property, and, as Mr. Farbstein says, sues and can be sued, condemns land. This is a very real distinction I believe, sir.

Chairman MORGAN. Mr. Fitzpatrick, my time has almost expired. I only have one further question. The previous witnesses here last week say that the Great Lakes Commission does not want to interfere in any way with the operation of the New York Power Authority. They made that clear in their testimony. I still can't see why the New York Power Authority opposes the formation of this compact. In what way would it injure the New York Power Authority? Can you spell out one specific way in which it will cause injury?

Mr. FITZPATRICK. May I say this, sir? We are not opposed to the compact. What we are opposed to is congressional consent to the compact which we believe unnecessary. The reason that we believe this is unnecessary and harmful is not necessarily so much the consent but the limitation that is imposed upon it. The fact that consent is specifically withheld from the provision in the compact which says that we can cooperate with Governments of the United States and Canada and so on. This would impose an impossible position upon us. If you, for instance, sir, could be concerned as we are on a day-by-day basis with two powerplants, the first and third largest powerplants in the free world, incidentally, at the present time, and could understand the implications of that power in the adjoining States and could then see how this is translated into our concern as to whether we can peak water, whether we can impound water, whether we can hold it back until it is an appropriate time, whether we can borrow water from Canada, we must be in a constant day-by-day communication with Canada, and if a compact is passed that in effect says that we must go through the State Department whenever there is going to be an exchange, which would not impinge on the sovereignty of the United States, and that in a relatively routine matter we must have the consent of Congress. This implies and we have had enough litigation, may I say, sir, in the Power Authority of the State of New York, which