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The GAO was created to be "independent of the executive departments and under the control and direction of the Comptroller General" (Sec. 301). Section 302 provided for the appointment of the Comptroller General and the Assistant Comptroller General "by the President with the advice and consent of the Senate..." Section 303 continued by establishing the tenure of the office, methods and causes of removal, reappointment prohibition, and age retirement of the Comptroller General:

Section 303. Except as hereinafter provided in this section,
the Comptroller General and the Assistant Comptroller General
shall hold office for fifteen years. The Comptroller General
shall not be eligible for reappointment. The Comptroller General
or the Assistant Comptroller General may be removed at any time
by joint resolution of Congress after notice and hearing, when,
in the judgment of Congress, the Comptroller General or Assistant
Comptroller General has become permanently incapacitated or
has been inefficient, or guilty of neglect of duty, or of
malfeasance in office, or of any felony or conduct involving
moral turpitude, and for no other cause and in no other manner
except by impeachment. Any Comptroller General or Assistant
Comptroller General removed in the manner herein provided shall
be ineligible for reappointment to that office. When a Comp-
troller General or Assistant Comptroller General attains the
age of seventy years, he shall be retired from his office.

The legislative history of the Budget and Accounting Act of 1921 (42 Stat. 20) necessarily requires an examination of the congressional activity in both the 66th and 67th Congresses. Proposals establishing a General Accounting Office "independent of executive departments" were first introduced in 1919. On July 14 of that year the Senate adopted a resolution providing for a select committee to study the question of the budget, as did the House on July 31. Extensive hearings were held by the House Select Committee on the Budget from September 22 to October 4, 1919, and on a more limited scale by the Senate Select Committee at the beginning

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of the next session. Although the Senate hearings terminated on January 14, 1920, a substitute Senate bill was not reported out of committee until April 13, 1920 and passed the Senate on May 1. A conference report was adopted May 27 and 29. The bill was unexpectedly vetoed by President Wilson on June 4, 1920 on the grounds that the President considered the provision dealing with the removal of the Comptroller General by a concurrent resolution of the Congress to be unconstitutional. message follows:

The veto

I am in entire sympathy with the objects of this bill and would
gladly approve it, but for the fact that I regard one of the pro-
visions contained in Section 303 as unconstitutional. This is
the provision to the effect that the Comptroller General and the
assistant comptroller general, who are to be appointed by the
President with the advice and consent of the Senate may be
removed at any time by a concurrent resolution of Congress after
notice and hearing, when, in their judgment, the comptroller
general or assistant comptroller general is incapacitated or
inefficient, or has been guilty of neglect of duty, or of mal-
feasance in office, or of any felony or conduct involving moral
turpitude, and for no other cause and in no other manner except
by impeachment. The effect of this is to prevent the removal
of these officers for any cause except by impeachment or a
concurrent resolution of Congress. It has, I think, always been
the accepted construction of the Constitution that the power
to appoint officers of thiskind carries with it, as an incident,
the power to remove. I am convinced that the Congress is without
constitutional power to limit the appointing power and its
incident, the power of removeal derived from the Constitution.
The section referred to not only forbids the Executive to remove
these officers but undertakes to empower the Congress by a
concurrent resolution to remove an officer appointed by the
President with the advice and consent of the Senate.
I can
find in the Constitution no warrant for the exercise of this
power by the Congress. ...I am returning the bill at the earliest
possible moment with the hope that the Congress may find time
before adjournment to remedy this defect. 1/

1/ Quoted in Darrell Hevenor Smith. The General Accounting Office: Its History, Activities, and Organization. Baltimore. Johns Hopkins Press. 1927. pp. 60-61. Other Sources about the history of GAS include: House. Committee on Government Operations. The General Accounting Office. Report. 84th Congress, 2d session. June 6, 1956. Richard Brown. The GAO: untapped source of congressional power. Knoxville. University of Tennessee Press. 1970. Harvey C. Mansfield. The Comptroller General. New Haven, Yale University Press. 1939.

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Beginning with the new 67th Congress, bills promoting the Budget and Accounting Act were introduced on April 11, 1921, in both chambers.

Senator McCormick's and Rep. Good's proposals, which differed as to the placement of the budget bureau, were similar with regard to the General Accounting Office and the Comptroller General except in two respects tenure in office and removal of the Comptroller General.

The Senate bill (S. 1084) was reported favorably without amendment by the Senate Committee on Expenditures in the Executive Departments on April 25, 1921. The bill was debated and approved with amendments by the Senate on April 26. House action included debate on House Resolution 74, which incorporated the Senate version, and a substitute bill (H.R.30) on May 3 and 5, 1921. A vote of 344 to 9 passed the amended bill in the House. A Conference committee reported a compromise bill on May 20 (calendar day May 25). The conference report (S. Doc. No. 15 and H. Rept. No. 96) explained the difference between the chambers and the eventual resolution regarding the removal and tenure of the Comptroller General and the Assistant Comptroller General:

The Senate bill provides that the comptroller general and the assistant comptroller general shall hold office for seven years, but may be removed at any time for the causes named in the bill by joint resolution. The House bill provides that the comptroller general and the assistant comptroller general shall hold office during good behavior, but may be removed at any time by concurrent resolution of Congress for the causes named in the bill. The bill as agreed upon in conference fixes the terms of office of the comptroller general and assistant comptroller general at 15 years, provides for their removal at any time by joint resolution of Congress for the causes named in the bill, and further provides that no comptroller general shall serve more than one term. 2/

2/ 61 Cong. Rec. 1854. 67th Congress, 1st session. May 27, 1921. Debate touching the Comptroller General may be followed in 58 Cong. Rec. 7085-93, 7128-42, 7199-7219, 7274-83, 7287-95 (House, Oct. 17-21, 1919); 59 id. 6266, 6350-3 (Senate, April 29-30, 1920); 7944-6 (House, May 29, 1920); 8625-8, 8653-7 (Senate and House on veto, June 5, 1920); 61 id. 662 (Senate, April 26, 1921); 989-91, 1089, 1851-6 (House, May 3, 5, 27, 1921).

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The vote on the conference report in the House was 335 to 3 on May 27, 1921,

and President Harding signed the bill on June 10, 1921.

The debate over removal of the Comptroller General completly overshadowed concern with the appointment process. The consensus was that the head of the General Accounting Office should be appointed by the President with the advice and consent of the Senate, as were other officers of the United States (Section 2 of Article II of the Constitution).

Article II

section 2 of the Constitution, however, is ambiguous, allowing for "inferior officers" to be appointed by the President alone, if the Congress so designates an office. It was eventually agreed that both the Assistant Comptroller General and the Comptroller General should be constituted as officers of the United States Government and not as "inferior officers."

Precedents for this position had been long standing. The most important is the Treasury Act of 1789 (1 Stat. 65), which created the Department of the Treasury and the office of Comptroller of the Treasury, the predecessor to the Comptroller General. As one of five Treasury officers (the others being Secretary, Treasurer, Register, and Auditor), the Comptroller was appointed by the President and confirmed by the Senate. There was apparently little or no difference of opinion as to the status of the Comptroller of the Treasury as an officer of the United States. Although the office of Comptroller continued to assume new powers and responsibilities and was even divided among three comptrollers3/during the years intervening between 1789 and 1921, there was no change in the method or procedures of appointment. 3/ The Act of 1817 (3 Stat. 366), enacted on March 3, 1817, provided for a second Comptroller as well as four additional auditors. Again on a March 3rd but in 1849, Congress authorized a "third comptroller," actually a Commissioner of Customs who performed the duties and exercised the powers "hitherto imposed by law upon the First Comptroller of the Treasury, relating to the receipts from customs and the accounts of collectors and other officers of the customs, or connected therewith." (9 Stat. 395, 396). By the end of the 19th Century the offices of the two formal Comptrollers and the Commissioner of Customs were re-combined into one Comptroller of the Treasury via the Dockery Act of 1898 (28 Stat. 162, 205, 207, 209). See Darrell Smith, op. cit. and Harvey Mansfield, op. cit.

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Although the method of appointment does not distinguish the Comptroller General from its predecessor Comptroller of the Treasury nor from other officers of the Government, the methods of removal of a Comptroller General

do.

Certain authorities in the 1921 Budget and Accounting Act provide a defense for the Comptroller General not only against the executive, so that the GAO "shall be independent of the executive departments," 4/ but also against the Congress. Whereas the President is prevented from removing the Comptroller General, the Chief Executive had held the power to remove the Comptroller of the Treasury, as he does for other Government officers in the executive branch (e.g. cabinet secretaries and assistant secretaries). The ability of the President to remove the Comptroller of the Treasury was only briefly challenged and that was during the debate on the 1789 Treasury Act. James Madison entertained an amendment which would have permitted the Comptroller of the Treasury to serve for a specific time period, "unless sooner removed by the President," 5/ but withdrew the motion during the succeeding day's deliberation.

proposal follows:

4/

Madison's statement on behalf of the aborted

It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are not purely of an executive nature. It seems to me that they partake of a judiciary quality as well as executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the Government. 6/

42 Stat. 23. Section 301.

5/ Quoted in Harvey Mansfield, op. cit. p. 28.

6/ Ibid., p. 28