I am here today to speak to one limited issue, and that is the exemption in section 7325(b)(1) of H.R. 10, which would appear to permit White House employees to engage full time in political activities without violation of the Hatch Act, particularly the onduty prohibition and the in Government building prohibition of section 7825.

The question involves primarily a policy issue, should the taxpayers finance one side of a political controversy by paying the salaries and expenses of Federal employees to engage in political activities!

I have submitted a full statement for the record, which, with its three exhibits, I ask be put in the record in full, and I will briefly summarize my testimony here today.

Senator SASSER. Without objection, so ordered. Your statement will be included in the record at the inclusion of your testimony.

Mr. MORRISON. Thank you, Mr. Chairman.

Mr. Chairman, under the present law, the Hatch Act, as now written, there is an exemption from the prohibitions of the Hatch Act for political appointees, subject to advise and consent of the Senate, and to anyone paid from the appropriations of the White House. This means there is a potent political force, which is available at time of an election, to be swung into action at the taxpayers' expense unless there is some other prohibition.

This is not an imaginary problem, but a very real one as the events of 1972 made perfectly clear. Public Citizen has long been active in the area, and exhibits 1 and 2 fully document the use to which substantial numbers of Federal employees were put in the campaign to reelect Mr. Richard Nixon as President. We have long taken a position quite apart from the Hatch Act, which merely sets up a prohibition, that in order for Federal employees to engage in any activity for which they are paid, there must be express authority in the law. This comes from the provision of the Constitution, article I, section 9, clause 7, and from the 31 U.S.C. section 628, which say in essence: "You will not appropriate money unless Congress says you can do it. You will check through the Code of the United States and find no place any reference that says political activities by Government employees are permitted. The most you can find is the negative inference from the Hatch Act.

It is as though a check were written on the public treasury and paid to the campaign of the candidacy of the President when Presidential officials use White House staff to engage in partisan political activities more than on an incidental basis. We brought a lawsuit in 1972 after the election challenging this matter. I regret to say the court eventually said that the taxpayers have no business going into courts worrying about how taxpayers' money is being used and as a result, our efforts all came to naught. The courts did not answer the question, dismissing on the grounds of lack of standing. It is our view, even under current law, that significant political activities may not be carried out by White House staff. Beyond the law of appropriations, there has been another matter which has been introduced since 1972 which greatly changes the picture and strengthens our position.

I refer specifically to the Federal Election Campaign Act of 1974 provided for Federal financing of Presidential elections. Now, in that Îaw there are definitions of contributions and expenditures, and as we

read the definitions of those terms, that when people are being paid by the Government to engage in political activities, those employees ought to be treated just the same as if, for instance, a corporation loaned a full-time employee to a campaign or a union did so. Those people are not volunteers, they are simply being paid by somebody else to engage in campaign activities.

We have tried on two separate occasions to persuade the Federal Election Commission of the correctness of our views; first regarding a complaint filed by the Citizens for Reagan against President Ford last year and again in efforts to formulate regulations by the FEC last year. We submitted our views and a brief supporting those views is attached as exhibit 3 to my statement. In essence, the Commission ducked the issue in both cases and left it open.

Quite apart from whether, as a matter of statutory construction of those terms such services are contributions or expenditures, there is a very important constitutional issue here. As you are well aware, the election amendments to which I have just referred, specifically placed limitations on the amount of money that can be spent by presidential candidates in both the primaries and in the general election if they accept Federal financing.

Now, the limitation on spending applies only if the candidates agree to accept Federal funding, and the Supreme Court in the case of Buckley v. Valeo specifically ruled that those conditions were constitutional provided the limitations were equal.

Now, it seems to me it is impossible to say that this provision as to equality will be met if you allow a force of 100 or 500 people in the White House to go out and campaign on a substantially full-time basis for the President and at the same time, say to the challenger, be it in the primary or in the general election, "No, you are limited to the same out-of-pocket dollar figure." It makes no economic sense. It is politically unfair and besides, in my opinion, it is unconstitutional.

To the position that we have taken, the proponents of the current and, indeed, wider exemption, say, you cannot limit on-duty versus off-duty. After all, the White House is always on duty. The difficulty with that position is that H.R. 10, as currently drafted, applies not simply to the White House, but to all political offices including Cabinet officers, and so the Civil Service Commission will have to make some provision for definition of "on-duty." Moreover, as passed in the House of Representatives subsection (b)3 specifically excludes incidental kinds of activities, a very sensible common sense approach, a de minimus rule, which we think makes sense and would not impair our basic position.

The second point made is that you cannot separate political from nonpolitical duties. That problem adheres once again to the problem of Cabinet officers, and other sub-Cabinet officers that may be engaged in similar kinds of activities. The difficulty is, however troublesome it may be to write these definitions and to enforce the law, when you have spending limitations based on the principle of fairness, if you don't have equality, you don't have a constitutional basis to uphold them.

We have proposed two possible solutions. One is that there be no activities whatsoever of a political nature by White House people, and

obviously by political nature we do not mean writing a speech in support of a position on legislation.

I think we know what political activity means. When you send White House staff down to Miami to make arrangements for the convention, or to do political advance work, and their expenses on the trip are paid out of the campaign fund of the President, you know perfectly well that there are political activities involved, and we don't have to hide behind the shield of the marginal case. The de minimus exception I set forth above, including incidental activities, we think, provides a proper and workable solution. In the alternative, we suggest the following other possibility, that is that the exemption be limited in a careful way in the following manner, that there be a specific number of people in the White House to whom the exemption would apply, say, 5 or 10 people and I don't have any magic number. I am not privy to the activities in the White House, but I am sure an appropriate number could be reached. For these people they would have to keep records of their time and make an appropriate disclosure at the end of each month as to the activities they have been engaged in. Obviously, the press secretary, a political adviser to the President, would be among those on the list, and then in that way you could either count those expenditures against the $21.8 million or you could do several other things. You could allocate additional amounts for nonincumbents, or if you really have a de minimus situation and you may well have with only 10 people doing incidental activities, and you compare that amount of money-not for 400, but 10, people— against a pool of $21.8 million, you have a rough equality. You could never have perfect equality between an incumbent or nonincumbent, but we could certainly do a lot better and I think the decision of Buckley v. Valeo can be read as saying rough equality is what is required, not absolute perfect equality. But whichever of these alternatives is adopted, the basic question there is, are you prepared to carry forth the spirit of the election amendments of 1974, and of fair and equal financing, or are we going to continue to let the question slide under the rug, and allow the President an unfair advantage that challengers do not have?

Thank you very much.

Senator SASSER. Well, thank you very much, Mr. Morrison. I think we both agree that it would be extremely difficult to limit or police a limitation on White House employees for engaging in political activity, and I think we probably would both agree it would be difficult to make the distinction between what is political and what is not political.

Obviously, a White House employee, during the course of a reelection campaign, doing advance work for a President, would be engaged in political activity. I don't think there would be any disagreement there.

One approach that has been suggested would be a prohibition on political activity by a White House staff member before say 5:30 p.m. on a certain day. What would your reaction to that be?

Mr. MORRISON. Well, I think that is more rigid than I would urge the committee to adopt. I would prefer the language now, the on-duty language now, and allow incidental activities. I think the Civil Service

Commission will have to deal with this on-duty problem and that if we are talking about somebody being out on their lunch hour and choosing to stuff envelopes on their lunch hour, I don't find that offensive. Indeed, the Civil Service Commission will have to deal with that very question if H.R. 10 gets passed for non-White House personnel. That is, does on-duty mean from the time the Federal Government turns the clock on in the morning until the time stops at night? The answer is, we have to adopt some sort of sensible provision.

I would think for the purpose of legislation, the on-duty versus off-duty distinction would be satisfactory, and this would encompass in general a presumption that after 5:30 at least, an employee's time is his or her own.

Senator SASSER. Again, thank you very much, Mr. Morrison. We appreciate your comments, and I must say you have made a very thoughtful analysis here and the staff may have additional questions which it may like to submit to you in writing; and I would hope you would answer them.

Mr. MORRISON. I would be pleased to.
Senator SASSER. Thank you very much.

[The prepared statement of Mr. Morrison, with exhibits follows:] STATEMENT REGARDING H.R. 10 BY ALAN B. MORRISON, DIRECTOR OF LITIGATION FOR PUBLIC CITIZEN, BEFORE THE COMMITTEE ON GOVERNMENTAL AFFAIRS, U.S. SENATE

H.R. 10 (the Federal Employees' Political Activities Act of 1977), which was passed by the House of Representatives on June 7, 1977, deals with issues of great concern to both Federal employees and citizens in general. Neither I nor Public Citizen has any particular expertise with the basic premises of the Bill, and, therefore, our comments are limited solely to one question: the proper scope of the exemption from the prohibitions of H.R. 10 for the staffs of the President and Vice President of the United States. In specific, we oppose the broad exemption created by section 7325(b) (1) which would appear to permit between 400 and 500 employees of the White House to engage in full time political activities without violating the Hatch Act or for that matter any other law. Because we believe this is wrong as a matter of policy, we recommend that the Committee delete section 7325(b) (1) entirely so that taxpayers' monies are never again used to finance only the campaign of an incumbent and not that of the challenger.

BACKGROUND

Public Citizen's involvement with this issue dates to the summer of 1972 during the re-election campaign of then-President Richard Nixon. On August 30, 1972, the Washington Post published a memorandum written by White House Special Counsel Charles Colson to members of his staff regarding the election campaign, a copy of which is submitted as Exhibit 1 of this statement. In substance that memorandum told the staff of 19 who worked for Mr. Colson that they were to engage in full-time campaign activities while on the federal payroll for the remaining 71 days of the campaign. There are, of course, certain advantages of incumbency that can never be overturned, but our examination of the law enabled us to reach the conclusion that the use of taxpayers' money to run political campaigns was wholly unauthorized and hence was in violation of Article 1, Section 9, Clause 7 of the United States Constitution, and 31 U.S.C. § 628. We recognized that under the Hatch Act the activities were permitted, but our position was that the Hatch Act exemption in 5 U.S.C. § 7324(d) (1) did not create any authorization of the kind required by the Constitution or 31 U.S.C. § 628. It was, in our view, as though the Nixon re-election campaign had simply written a check on the Treasury of the United States to pay the salaries of workers in the campaign, with the only difference being the form of the raid on the Treasury. Indeed, a recent en banc decision of the Second Circuit ruled that a federal agency has no authority to pay the attorneys' fees of intervenors in the absence of an

express statutory grant of such power. Greene County Planning Board v. Federal Power Comm., Nos. 76-4151 and 76-4153, decided June 30, 1977. Although we disagree with that decision on the merits, its importance for this purpose is that the Court relied on 31 U.S.C. § 628 to support its conclusion that specific authority was needed to permit the FPC to make the requested payments.

After the election we filed a lawsuit, during the course of which we took extensive discovery that demonstrated conclusively that the White House had been a campaign headquarters, with politics the number one business and the business of government a secondary concern. After concluding our factfinding, both sides moved for summary judgment, and our brief at pages 9-26 summarizes the evidence of White House involvement in the 1972 campaign. A copy of that brief is annexed as Exhibit 2 to this statement. Unfortunately, the District Court never reached the merits of the controversy because an intervening decision of the Supreme Court severely limited the right of taxpayers to challenge the illegal use of taxpayers' money, and the District Court eventually dismissed the complaint. Our appeal was also rejected by the D.C. Circuit Court, and the case has now been finally resolved against us, without reaching the merits of this issue.

The question of White House involvement in political campaigns arose again in the 94th Congress, when the scope of the exemption for political activities of the White House was an issue with regard to H.R. 8617. We were unaware that the matter was coming up in the House in October 1975 and hence did not participate in the efforts of Congressman Herbert Harris to narrow the scope of that exemption. However, in the Senate, we worked extensively in an effort to limit the exemption because as H.R. 8617 was passed by the House, the exemption appeared to create the very authorization to engage in activities which the prior law had left open, and thus, in our opinion, the situation was worse than it was under the prior law.

Our efforts in the Senate, along with that of numerous other groups, particularly Common Cause, were only partially successful. Because no hearings were held in the Senate, we were unable to make our views known at the Committee level, and hence the ability to probe the issue in depth and to perhaps reach a compromise were seriously undermined. Senator Dick Clark nonetheless introduced an amendment to delete section 7325(b) (2),1 but that amendment was not voted upon because a motion to table was passed by a vote of 52-34. See Cong. Rec. March 11, 1976, S. 3226-30 (daily ed.). As a compromise, a new provision was added to at least eliminate any inference that anything in H.R. 8617 would authorize the expenditure of taxpayers' money for those purposes and thus return the law to the status quo ante. Id. S. 3239. The provision was modified somewhat in conference and now appears as subsection 7325(c) in H.R. 10, but that provision as now in H.R. 10 does very little to solve the problem. It states no more than that nothing in this section shall be deemed to override other specific prohibitions in the law, but the problem is that there are no specific prohibitions and the question is, are there any specific authorizations? Thus, at the very least, the final portion of subsection (c) beginning with the word "otherwise" and continuing to the end, should be deleted and in its place should be inserted the following language: "unless there is a specific authorization in law permitting them to do so."

In addition, in Committee the House made several other changes which are worth nothing. First, it amended the definition of "employee" in section 7322 (1) to exclude the President and Vice President from any coverage under the Act, whereas before they were excluded from only some of the provisions, including the on-duty limitations of section 7325 (a). Second, in Subcommittee the on-duty exemption was broadened to go outside the White House, but that decision was reversed in full Committee and the original limitation in HR 10 as introduced (which was the same as HR 8617 passed by the 94th Congress) was retained. Third, the Committee added a new provision, new designated subsection 7325 (b) (3) which excludes "any activity of an individual which is not otherwise prohibited by or under law and which is part of such individual's official duties." The effect of this language, which is not entirely clear on its own, is made less clear by differing provisions in the Committee Report (95-292). Thus, at pages 13-14 the Report appears to allow employees to make political speeches while on duty, whereas at page 35 in the detailed section-by-section analysis, the excep

1 The equivalent of Section 7325 (b)(1) of H.R. 10.