"In this connection it seems desirable to give some consideration to the role of the Comptroller General in a situation of the type presented here. The Comptroller General is the head of the General Accounting Office, 31 U.S.C. $41. Unlike heads of most departments and establishments of the Government, he occupies a dual position and performs a two-fold function. First, he makes investigations of matters relating to the receipt, disbursement and application of public funds, and reports the results of his scrutiny to the Congress with appropriate recommendations. In addition he pursues investigations that may be ordered by either House of Congress, or by any Committee of either House, in matters relating to revenue, appropriations or expenditures, 31 U.S.C. $53. In performing these functions the status of the Comptroller General is that of an officer of the legislative branch of the Government. The Congress has comprehensive authority to undertake investigations in aid of legislation, or in connection with the appropriation of funds. Investigations are an aid to legislation and to the making of appropriations and are therefore auxiliary to the basic functions of the Congress. The Congress may conduct investigations either through Committees or through an official such as the Comptroller General. "The Comptroller General has also a second status as the chief accounting officer of the Government. His second principal function is that of approval or disapproval of payments made by Government departments and other agencies, as well as of settling and adjusting accounts in which the Government is concerned, 31 U.S.C. $71. This is an executive function and in performing it the Comptroller General acts as a member of the Executive branch of the Government. The dual status of the General Accounting Office is not anomalous, for many regulatory commissions fulfill in part a legislative function and in part carry out executive duties, Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L.Ed. 1611. Cf. Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L.Ed. 160. Thus we have developed in comparatively recent years a fourth type of Government agency,--one that combines two kinds of basic powers. (234 F. Supp. at 99100) (emphasis added). MEMORANDUM Considering this background, opponents of Page 11 S. 2206 are likely to argue that congressional appointment of the Comptroller General and his Deputy would result in a change in his status, curtailing the power of his office at the very time when he needs more, not less authoirty over the Executive departments. Briefly stated, the main line of such an argument might include the following points: First, the precedent established by the two Houses of Congress in jointly appointing a Director of the Congressional Budget Office for a four-year term is inapplicable, because CBO is simply an office of the legislature, conducting studies for and reporting recommendations to Congress. Unlike GAO, the CBO has no "Executive" functions and its director is not an "officer of the United States." Second, it remains highly questionable, because of the constitutional separation of powers issue, whether Congress can appoint an "officer of the United States" and delegate to him "executive "duties. Thus, congressional appointment of the Comptroller General ultimately would require divestiture of his "executive" duties, which are in effect the "big stick" supporting his ability to conduct investigations on behalf of Congress. MEMORANDUM Page 12 Whatever the merits, this line of argument ignores the relationship between the two bills pending before the subBriefly stated, the issue raised by these bills, committee. and a key area for subcommittee inquiry, is whether the permitted to retain the "executive" duties he now has under the 1921 Act. The point is that, with the subpoena and enforcement power, his ability to approve or disapprove payments by government departments and to settle and adjust accounts may be of little consequence. In short, retention of these "executive" duties may add little or nothing to his ability to perform his investigatory function, if he has recourse to the ultimate weapons of the subpoena and the power to initiate civil action for declaratory relief.* The corollary stems from the fact that the subpoena and enforcement powers envisioned under S. 2268 are extraordinary powers. Almost certainly it will be argued by some opponents that such powers should not be exercised independently by a "Fourth Branch of Government," without some control by elected officials. Certainly, then, if his "executive" duties become virtually excess baggage and can be shifted back to Treasury, thus eliminating the constitutional question - congressional appointment and a shorter term is a sensible alternative to provide for an appropriate measure of accountability for the use of the new discovery and enforcement powers. MEMORANDUM Page 13 ** Congressional delegation of the enforcement power is the heart of the issue in the challenge to the Federal Elections Commission in Buckley v. Valeo, and in Staats v. Lynn, pending in U.S. District Court. In Buckley, the Court of Appeals did not decide on the merits, finding the issue not ripe. In Staats, the Comptroller General is seeking to require the Executive to release impounded housing funds under procedures established in Title X of the Congressional Budget and Impoundment Control Act of 1974, the only enactment giving him such enforcement power. The Comptroller General maintains that even if he were not an independent officer but were instead solely an agent of Congress he could still constitutionally be designated by Congress to initiate suits requiring Executive officers to perform an asserted duty under the laws. Justice maintains it is unconstitutional for the Comptroller General to bring suit on the grounds that he is an arm of the Congress," acting as its agent, and is thereforeconstitutionally barred from taking actions to "execute the laws." |