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We think we are doing a great deal more. We think we are much closer today to the committees of the Congress by far than we ever were before. We would like to find ways to improve that.
I have suggested, for example, that it would be useful for our Office at the time we submit our annual report each year to meet with the full committees of the House and Senate Government Operations Committee to give them an opportunity to review what we are doing.
We would gladly receive suggestions that they have. I have made this suggestion on a number of occasions. I would still continue to feel that that would be a useful thing to do.
We need, I think, as much communication as we can have from a practical standpoint as possible.
Senator METCALF. This is going to be necessarily a continuing inquiry, and some of these problems are not just going to go away with one bill or another. Of course, you were told that we are instructed by the Rules Committee to conduct an inquiry into the regulatory agencies and their function and their purpose, and so forth.
Part of that will be inquiry into some of these constitutional questions that appear in this legislation and in the legislation that follows.
So I am going to ask you to continue with your report on the next bill. Let's go just the way you have it, S. 2268.
Mr. STAATS. As you know, the text of S. 2268 was drafted and submitted by our Office. Provisions substantially identical to title I and II were contained in S. 4432, 91st Congress, which was passed by the Senate on October 9, 1970.
I have attached as appendix I 1 to my statement an analysis of the major differences in those provisions of the two bills.
We consider S. 2268 a most important and significant bill because it will enable us to do a better job in performing the statutory functions assigned us by Congress.
With your permission, I would like briefly to discuss each of the five titles in the bill.
TITLE I-ENFORCEMENT OF DECISIONS AND SETTLEMENTS
A major objective of this bill is to provide a means to resolve the potential impasse that arises when the Attorney General and the Comptroller General differ concerning the legality of the proposed use of appropriated funds.
Section 101 of title I would add new sections to the Budget and Accounting Act, 1921, as amended, that would provide the Comptroller General procedural remedies through court action to resolve disputes between the Comptroller General and the Attorney General concerning the obligation or expenditure of funds.
It provides for declaratory relief when the Comptroller General has reasonable cause to believe that any officer or employee of the executive branch is about to expend, obligate, or authorize the expenditure or obligation of public funds in an illegal manner.
Subsection (a) states that the authority provided by this section shall be exercised only in connection with accounts over which the Comptroller General has settlement authority pursuant to 31 U.S.C. section 74.
1 See p. 41.
In addition, it provides that this section shall be construed as creating a procedural remedy in aid of the statutory authority of the Comptroller General and is not intended to otherwise enlarge the jurisdiction established by 31 C.S.C. section 74.
That is a very important point to emphasize.
Subsection (b) authorizes the Comptroller General to institute a civil action for such relief in the U.S. District Court for the District of Columbia; it authorizes the Attorney General to represent the defendant official in such action if he disagrees with the Comptroller General; it provides that other parties may intervene or be impleaded; and it provides that service or process may by certified mail beyond the territorial limits of the District of Columbia.
Subsection (c) provides that in the event a suit brought under this title delays a payment for goods or services beyond its due date, the payment when made by the agency involved shall include interest thereon at the rate of 6 percent per annum from the time it was withheld, and that otherwise no court shall have jurisdiction to award damages against the United States as a resut of any delay occasioned by the institution of a suit under this section.
We believe that this power to enforce our decisions is fundamental to our ability to carry out our statutory responsibilities with maximum effectiveness.
As you know, Mr. Chairman, our enabling legislation, the Budget and Accounting Act of 1921, charge the Comptroller General with "settling and adjusting” all Government accounts, with certain exceptions.
The act further provides that balances certified by the Comptroller General shall be final and conclusive upon the executive branch.
Congress, in enacting the Budget and Accounting Act, recognized and acted on the need to vest this very important account settlement function in a Comptroller General independent of political influence from any source.
By and large, the Comptroller General's independent judgment and objectivity in performing his account settlement function has been recognized by all.
However, it is inevitable that some differences of opinion will arise from time to time between the independent Comptroller General and the Attorney General representing the views of the executive branch, especially regarding important and controversial matters.
Such differences have been rare, but they bring to question the finality of the Comptroller General's rulings on the executive branch as provided in the Budget and Accounting Act.
Under the present system, the Attorney General generally has the final word, since unlike the Attorney General, the Comptroller has no present authority to appeal to the courts to resolve the dispute—the issue can reach the courts only when and if the Attorney General brings a suit to recover amounts illegally paid.
I have attached as appendix II to my statement a summary of such disagreements in the past that may be of interest to the committee.
This situation gives rise to the need for statutory authority in the Comptroller General or his representatives to appear in court to obtain a judicial determination of issues involved in conflicting Attorney General and Comptroller General positions. Adverse rulings of the Comptroller General have a decided impact upon programs of the Government at whatever stage in the program they are rendered. When this impact is felt in the early or planning stages, the agency involved usually has the facility for necessary reprograming, substitution, or redirection. This impact is more keenly felt when a program is under way, contracts have been let, and commitments with the private sector made. In those situations it is essential that final resolution be obtained quickly.
1 See p. 42.
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The President, in a statement issued on December 22, 1969, recognized very clearly the problems that can arise in such circumstances. He said, in part:
When rulings differ, however, when the chief legal officer of the executive branch and the chief watchdog of the Congress end up with opposing views on the same matter of law, the place for resolution of such differences, is the court—just as it is the resolution of differences between private citizens.
The President was speaking of an amendment which the Senate had attached to a bill for the purpose of enforcing a ruling by the Comptroller General against a contrary opinion by the Attorney General as to the legality of certain expenditures. The President took the position that legislation on this subject should:
*** permit prompt court review of any difference between legal opinions of the Comptroller General and those of the Executive, and * * * permit the Comptroller General to have his own counsel (rather than the Attorney General) to represent him in such cases.
Finally, in speaking of the independence of the Comptroller General the President stated :
I wish to assure the Congress and the public of this Nation that consider the independence of the Comptroller General of the United States of the utmost importance in the separation of powers in our Federal system. The amendment now under discussion by the Congress will not and should not be permitted to bring this principle into any doubt.
Title I is included in the bill precisely for the purpose stated by the President “to permit prompt court review of any difference between legal opinions of the Comptroller General and those of the Executive, and to permit the Comptroller General to have his own counsel (rather than the Attorney General) to represent him in such cases.” As previously indicated, there is no present mechanism by which the Comptroller General, unlike the Attorney General, or even a private citizen, can present these disputes to a court for resolution. This authority has already been provided the Comptroller General in connection with his functions pursuant to the Congressional Budget and Impoundment Control Act of 1974 and the Federal Elections Act of 1971 prior to its amendment in 1974.
Title I is not intended to alter or substantively affect any existing provisions of law, such as those governing the legality of public contracts, obligations, or expenditures, and the finality of administrative determinations. It will enable the Comptroller General to obtain a speedy judicial resolution of any future disputes between the Comptroller General and the Attorney General.
Senator METCALF. Would you pardon the interruption ?
Senator METCALF. These are the same problems that we find with the regulatory agencies. When there is a dispute with the Attorney General, they are overruled and they don't get to go into court.
Mr. DEMBLING. That is correct, Mr. Chairman. However, to overcome some of these problems, the Congress has seen fit, for example, to grant authority to the Federal Trade Commission to go into court to enforce its order, and consideration is being given, as I understand, to other regulatory agencies being given that same authority.
Mr. STAATS. The Federal Elections Commission, which is a regulatory body, also has this authority now.
Senator METCALF. I am not so sure.
Mr. STAATS. Let me say this. What bothers me is that a Governor can bring suit if funds are impounded, a private citizen can bring suit.
Senator METCALF. Sometimes. Mr. Staats. But a member of the legislative branch cannot bring suit. There is something wrong when this sort of situation exists.
Senator METCALF. I am not going to argue that question with you either. That is going to be decided pretty soon. I filed a suit against the National Petroleum Council as a member of the legislative branch and one of the issues raised was whether or not I had standing to sue.
Mr. Staats. I hope you win.
Senator METCALF. I don't know. It looks pretty close to me, as far as reaching a Supreme Court decision. But certainly members of a legistlative body have been given standing to sue against a member of the legislative branch. We run into the old Supreme Court series of decisions, there is no violation of the right when only one right is involved or a small tax is involved, a
so forth. But I think we could give standing to sue to any one. It is whether or not the Congress has given that standing that sometimes makes these questions arise. Isn't that correct?
See, we didn't give standing to the Federal Trade Commission, as you will remember, Mr. Dembling, until there were such abuses in enforcement that we had to give them the power of enforcing some of their own orders.
But Congress could do that. I think probably Congress can do this, too. It can give you some standing to sue. The only problem is whether you need it and whether it is appropriate to do so. Isn't that correct?
Mr. Staats. That is the question. But what is of great concern is that the Congress says to the Comptroller, “You have the responsibility to pass on the legality of expenditure. You settle accounts. That is the process by which you do that."
Then if the Attorney General says you are wrong, we have no recourse. He has got a complete veto over our exercise of that authority.
The question is, is it an authority if you have an officer of the executive branch--that is the executive branch that we are auditingwho can say you can't even get into court? He not only vetoes us, our action, but he also prevents us from getting the action litigated in the courts.
Now, that means in effect that the Congress has delegated that final authority not to an officer of the legislative branch, but to an officer of the executive branch. That is really what has disturbed me ever since I have been Comptroller General.
I don't believe you have separation of powers problem; nor do I believe that it is possible in those limited cases where the Attorney General and the Comptroller General disagree for the Comptroller General to carry out the function that the law says he is supposed to carry out. That is what it comes down to.
Senator METCALF. You haven't had very much trouble with that recently, though, have you?
Mr. STAATS. There have been 24 cases since the GAO) was established. So that means there haven't been very many cases.
Senator METCALF. Now that is appendix II, isn't it?
outlined the cases in appendix II?
Mr. Staats. Yes. We have gone back to the beginning to try to identify all of the cases of this nature.
Senator METCALF. The 24th case was what, May 4, 1975?
Senator METCALF. And the 23d case was 1969. Then you have to go back to 1966 to find the 22d case. So you only have two cases in the last 9 years.
Mr. STAATS. Well, three cases.
Senator METCALF. Twenty-three and 24 and 25, yes. Three cases in the last 9 years.
Mr. Staats. I think we are talking here about a principle, and I suspect that you could find also in most cases where the regulatory agencies would not have difficulty coming into agreement with the Justice Department.
But when you have these differences, we are not saying, Mr. Chairman, that we shuuld have the final authority to enforce an action of our own right. All we are asking for is the right to get the case litigated. That I think is the same principle you are talking about.
Senator METCALF. The only opinion I have is it doesn't seem to me you have a very great problem when you only have two cases since 1970 and three since 1966. That brings up the question, have you been tough enough or haven't you gotten along all right and don't need this authority?
Mr. STAATS. I think we have been tough enough, but I would also have to say to you honestly that the fact that we know that the Attorney General can overrule us may well have some bearing upon our willingness to do it. You are talking here essentially about whether an officer of an executive branch will have authority to veto the Comptroller General on a matter of what does the law say with respect to authority to spend money:
Senator METCALF. I think you have made your point. I just want to bring out that it seems to me that you have been getting along with the Attorney General or having better negotiations in recent years than in the earlier years. Perhaps this authority isn't needed.
Mr. RYTER. Mr. Staats. I think it would aid the deliberation of the subcommittee on this matter to have an estimate on how many cases you actually brought to the Attorney General for litigation.
1 See p. 42.