Mr. ERVIN, from the Committee on the Judiciary,
submitted the following

REPORT

[Pursuant to S. Res. 56, Section 17, 93d Cong., first session.]

The following report, covering the period March 1, 1973, to February 28, 1974, is submitted by the Subcommittee on Separation of Powers of the Committee on the Judiciary in compliance with section 17 of Senate Resolution 56, agreed to February 27, 1973.

The Subcommittee's mandate, as set out in the resolution which created the Subcommittee is:

To make a full and complete study of the separation of powers between the executive, judicial, and legislative branches of Government provided by the Constitution, the manner in which power has been exercised by each branch and the extent, if any, to which any branch or branches of the government may have encroached upon the powers, functions, and duties vested in any other branch by the Constitution of the United States.

BILLS AND RESOLUTIONS CONSIDERED

During the period covered by this report, March 1, 1973, to February 28, 1974, the following bills and resolutions were considered by the Subcommittee:

BILLS AND RESOLUTIONS REFERRED TO THE SUBCOMMITTEE S. 853, to insure the separation of Federal powers by amending the National Labor Relations Act to provide for trial of unfair labor practice cases in the United States district court, and for other purposes (By Mr. Tower, for himself, Mr. Bennett, Mr. Curtis, Mr. Ervin, Mr. Fannin, Mr. Goldwater, Mr. Hruska, Mr. Scott of Virginia, and Mr. Thurmond, February 15, 1973).

S. 1042, to insure the separation of Federal powers and to protect the legislative function by amending title I of the United States Code, to provide for the implementation of article I, section 7, of the Constitution (By Mr. Ervin, February 28, 1973). S.J. Res. 72, to insure the separation of Federal powers and to protect the legislative function by providing a procedure for requiring Federal officers and employees to inform the Congress (By Mr. Ervin, March 8, 1973).

S. 1272, to provide procedures for calling constitutional conventions for proposing amendments to the Constitution of the United States, on application of the legislatures of two-thirds of the States, pursuant to article V of the Constitution (By Mr. Ervin, for himself and Mr. Brock, March 19, 1973).

S. 1472, to help preserve the separation of powers and to further the constitutional prerogatives of Congress by providing for Congressional review of executive agreements (By Mr. Ervin for himself and Mr. Abourezk, Mr. Bayh, Mr. Bentsen, Mr. Bible, Mr. Brooke, Mr. Case, Mr. Church, Mr. Clark, Mr. Fulbright, Mr. Gravel, Mr. Hart, Mr. Hatfield, Mr. Hollings, Mr. McGovern, Mr. Mathias, Mr. Mondale, Mr. Moss, Mr. Pastore, Mr. Randolph, Mr. Ribicoff, Mr. Roth, Mr. Schweiker, and Mr. Talmadge, April 5, 1973).

S. 1973, to provide procedures for calling constitutional conventions for proposing amendments to the Constitution of the United States, on application of the legislatures of two-thirds of the States, pursuant to article V of the Constitution (By Mr. Hathaway, June 11, 1973).

S. 2073, to authorize the Senate, the House of Representatives, and congressional committees to bring suits with respect to claims of executive privilege (By Mr. Kennedy, June 26, 1973).

S. 2803, to insure the separation of constitutional powers by establishing the Department of Justice as an independent establishment of the United States (By Mr. Ervin, December 12, 1973). S. 2978, to establish a special commission to study the establishment of an independent permanent mechanism for the investigation and prosecution of official misconduct and other offenses committed by high Government officials (By Mr. Cranston, February 7, 1974).

BILLS AND RESOLUTIONS CONSIDERED JOINTLY WITH OTHER

SUBCOMMITTEES

S. 858, to amend title 5, United States Code, with regard to the avail-ability to the Congress and the General Accounting Office of information of the executive branch of the Government (Mr. Fulbright, February 15, 1973).

S. Con. Res. 30, to establish a procedure assuring Congress the full and prompt production of information requested from Federal officers and employees (Mr. Ervin, for himself and Mr. Muskie, June 8, 1973).

S. 1106, to amend the Federal Reports Act to avoid undue delays in the collection of information by Government agencies (Mr. Percy, March 6, 1973).

S. 1142, to amend section 552 of title 5, United States Code, known as the Freedom of Information Act (Mr. Muskie, for himself, Mr. Bible, Mr. Chiles, Mr. Eagleton, Mr. Gravel, Mr. Hart, Mr. Hughes, Mr. Humphrey, Mr. Javits, Mr. Kennedy, Mr. Metcalf, Mr. Mondale, Mr. Percy, and Mr. Ribicoff, March 8, 1973).

S. 1520, to establish a commission to study all laws, and executive branch rules, regulations, orders, and procedures, relating to the classification and protection of information for the purpose of determining their consistency with the efficient operation of the Government, including the proper performance of its duties by the Congress, and for other purposes (Mr. Roth, for himself, Mr. Ervin, Mr. Abourezk, Mr. Bayh, Mr. Brock, Mr. Clark, Mr. Cranston, Mr. Hart, Mr. McIntyre, Mr. Mondale, Mr. Pastore, Mr. Pell, Mr. Sparkman, Mr. Stevenson, and Mr. Williams, April 10, 1973). S. 1923, to amend the Legislative Reorganization Act of 1970 to provide that Federal agencies keep congressional committees fully and currently informed (Mr. Mathias, for himself, Mr. Ervin, and Mr. Mansfield, May 31, 1973).

HEARINGS HELD

From March 1, 1973, to February 28, 1974, the period covered by this report, the Subcommittee on Separation of Powers conducted three series of hearings, either singly or jointly with other subcommittees.

EXECUTIVE PRIVILEGE-SECRECY IN GOVERNMENT-FREEDOM OF INFORMATION

The Subcommittee on Separation of Powers joined with two other subcommittees, the Subcommittee on Intergovernmental Relations of the Committee on Government Operations and the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, in a continuation of an examination of Executive privilege, a subject which the Subcommittee has studied for many years and which received its intensive scrutiny during the 92d Congress, in hearings held in July and August 1971, on Executive Privilege: The Withholding of Information by the Executive.

In 11 days of joint hearings on April 10, 11, 12; May 8, 9, 10, 16; and June 7, 8, 11, and 26, 1973, the subcommittees, sitting together;

heard the testimony of 38 witnesses. These witnesses included two Attorneys General of the United States,' Members of Congress, the Comptroller General of the United States, present and former Government officials, constitutional scholars, and representatives of the American Bar Association, the press, and citizens groups.

These hearings were published in three volumes, totaling 1,482 pages of testimony and supporting documents.

The chairmen of the three subcommittees which joined forces in the 93rd Congress to continue the examination of the use of Executive privilege that had been pioneered by the Subcommittee on Separation of Powers in earlier studies and hearings, were Senator Sam J. Ervin, Jr., chairman of the Subcommittee on Separation of Powers and author of S.J. Res. 72 and S. Con. Res. 30; Senator Edmund S. Muskie, chairman of the Subcommittee on Intergovernmental Relations and author of S. 1142; and Senator Edward M. Kennedy, chairman of the Subcommittee on Administrative Practice and Procedure and author of S. 2073.

All of the bills and resolutions which are cited in the preceding paragraph, and which are more fully described in the list of bills and resolutions in this report, were subjects of these joint hearings, as were S. 858, introduced by Senator J. W. Fulbright, S. 1106, introduced by Senator Charles H. Percy; S. 1520, introduced by Senator William V. Roth, Jr.; and S. 1923, introduced by Senator Charles McC. Mathias, Jr.

These eight legislative proposals that were the subject of the joint hearings of the three subcommittees were designed to overcome problems and abuses relating to executive privilege, secrecy in government, and freedom of information. Thirty members of the Senate cosponsored one or more of these measures.

FEDERAL CONSTITUTIONAL CONVENTION PROCEDURES

On April 12, 1973, the Subcommittee held a brief hearing on S. 1272, the Federal Constitutional Convention Procedures bill introduced on March 19, 1973, by Senator Ervin on behalf of himself and Senator Bill Brock. This hearing was called at the request of a citizens group, the National Committee for a Constitutional Amendment to Prohibit Forced Busing, which was advocating an amendment to the Constitution and the possible calling of a constitutional convention by the States pursuant to article V of the Constitution. This group had an interest in S. 1272, which would provide for procedures in the event a constitutional convention were to be called; for, according to information furnished by this group, nine State legislatures had adopted identical resolutions calling for a convention with respect to the subject of the forced busing of school children and over 20 other State legislatures were considering such a call.

Three witnesses representing the citizens group testified at the hearing. These witnesses were accompanied by several State senators and representatives from the States of Arkansas, Tennessee, and Texas. These witnesses expressed their belief that two-thirds of the States would petition for a convention to be called to consider a constitutional amendment relating to school busing; and stated that there is an

1 Richard G. Kleindienst, who testified on April 10, 1973, and his successor, Elliot Richardson, who testified on June 26, 1973.

urgent need for specific and detailed legislative guidelines for the conducting of a Federal constitutional convention. The chairman of the group, Mr. Wayne Connally of Texas, told the subcommittee, "We are legitimate people asking reasonable help from our elected officials in guiding us to a successful and safe resolution of a national issue, by the convention method."

Senator William A. Hathaway in a statement presented at this hearing, declared that it is critical that Congress address itself to this problem without further delay, and stated that he intended to introduce a bill that would be identical with the Ervin bill in most respects but would differ substantially in some of its provisions.

On June 6, 1973, the Subcommittee reported S. 1272 (the Ervin bill) to the Committee on the Judiciary, and the Committee on the Judiciary reported the bill on June 30, 1973. The Senate passed S. 1272 by voice vote, with no opposition, on July 9, 1973. The bill was then referred to the Committee on the Judiciary of the House of Representatives, where, at this writing, it is pending in a subcommittee of that committee.

On June 11, 1973, Senator Hathaway introduced his Federal Constitutional Convention Procedures bill (S. 1973), and the bill was referred to the Subcommittee on Separation of Powers on June 25, 1973. One of the most important differences between the Ervin bill and the Hathaway bill is that Senator Hathaway's bill would permit a convention to consider proposals of amendments to the Constitution not on the "agenda" defined by the State petitions; whereas, one of the important points of the Ervin bill is that a convention would be limited to consideration of only the subject, or subjects, specifically stated in the States' petitions; in other words, under the Ervin bill there could not be a "wide open" convention.

Senator Hathaway's bill further provides a different voting requirement for approval by the Constitutional Convention of amendments to the Constitution on subjects specified in the petitions and additional amendments that may be proposed during the convention pursuant to his bill: constitutional amendments specified in the States' petitions would be approved by a simple majority vote of the delegates; amendments that had not been named in the petitions would be approved by a two-thirds vote.

Those familiar with the history of this legislation will recall that Senator Ervin's Federal Constitutional Convention Procedures bill (S. 215) passed the Senate in the 92d Congress, 84-0, with only one amendment: That amendment to the Ervin bill, introduced by Senator Bayh, changed the provision that would permit the approval of a proposed constitutional amendment by a simple majority vote of the delegates to the constitutional convention, to require a two-thirds vote of the delegates.

When Senator Ervin reintroduced his bill in the 93d Congress, he retained the amendment to his bill that had been adopted by the Senate; thus, S. 1272 is identical with the bill that passed the Senate in the 92d Congress.

Senator Hathaway's bill also would limit the size of the convention; his bill provides that each State would have a number of delegates equal to one-half the total number of Representatives and Senators representing that State in the Congress, an additional delegate from a district to be established within the State if the total is an uneven