The committee met, pursuant to notice, at 9:50 a.m. in room 3302, the Dirksen Senate Office Building, Hon. Abraham Ribicoff presiding. Senators present: Senators Ribicoff and Weicker.

Staff members present: Richard A. Wegman, chief counsel and staff director; David R. Schaefer, counsel; Marilyn A. Harris, chief clerk; and Elizabeth A. Preast, assistant chief clerk.

Senator RIBICOFF. The committee will be in order.

We are very pleased to have you with us, Senator Abourezk. The staff informed me that your bill is an excellent one. There are many sections in it that are far superior to the committee bill. We welcome your testimony because my feeling is that big sections of your bill will be found in the ultimate legislation.

I want to tip my hat to you, and give you credit for it.

TESTIMONY OF HON. JAMES ABOUREZK, A U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

Senator ABOUREZK. Thank you, Mr. Chairman. Modesty prevents me from agreeing or not agreeing with your observations.

Mr. Chairman, I am very pleased to testify today in support of the need to create an Office of Congressional Legal Counsel. As chairman of the Subcommittee on Separation of Powers I believe that creation of such an office will do much to restore the principle of separation of powers, which has been seriously eroded as a result of recent court action. This office would assure that the interests of the legislative branch will be represented vigorously in future proceedings before the judicial branch.

Although I generally support the provisions of section 102 of S. 495, on December 2, 1975, I introduced S. 2731, which I believe improves and perfects upon the provisions of that section. S. 2731 has been referred to your committee and I hope it will be given favorable consideration.

My testimony today will focus both on the need to create an Office of Congressional Legal Counsel and on the differences between my bill and S. 495.

That creation of this office is necessary is demonstrated by the fact that Congress is increasingly the subject or initiator of litigation.

Alexis de Toqueville said, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." Congress must now finally begin to take this reality into account. The amount of litigation in which Congress becomes involved is not surprising when one considers the significant powers which Congress exercises in our constitutional system. In 1972 the Joint Committee on Congressional Operations reported that there were pending in the courts five civil actions brought against congressional committees, nine civil actions pending against officers or employees of the Congress, one civil action against Congress itself, several dozen civil actions brought against individual Members involving contested elections and the franking privilege, several civil actions having a direct impact on Members but in which Members were not named as defendants, and six criminal actions brought against Members or aides.

Among the cases then pending were Doe v. McMillian, where plaintiffs sought to enjoin publication of a committee report; the action brought by Senator Gravel to enjoin the enforcement of a grand jury subpena of his aide; Hillery v. Albert, an action challenging the constitutionality of the seniority system; two damage actions against the Chief of the Capitol Police; and five actions against the Clerk of the House of Representatives and the Secretary of the Senate regarding enforcement of the campaign finance laws.

Other significant cases were brought against the Congress in the 1973-75 period, including three lawsuits brought against the Senate Select Committee on Presidential Campaign Activities, an action brought by Consumers Union of America against the Sergeant at Arms and Periodical Correspondents Association, numerous actions involving control of committee or congressional documents, and an action brought against the Clerk of the House of Representatives attempting to force him to take steps to call a constitutional convention.

Prior to the Joint Committee's effort to compile these reports, the courts have handled many other significant cases involving Congress, including the case of Powell v. McCormack, which challenged the constitutional power of the Congress to be the final judge of the qualifications of its Members.

Not only is the number and variety of these lawsuits impressive, but many of them have been so complex that it has required many years to resolve them in the courts. The case of Doe v. McMillian, for example, was filed in 1971, but was not resolved until 1974 after having been heard in four different courts.

The case of United States Servicemen's Fund v. Eastland was filed in 1970 and on May 27, 1975, the Supreme Court finally remanded the case back to the district court with instructions to dismiss the action.

The decisions which have been reached in court cases involving Congress have already adversely affected the fundamental principles upon which Congress' constitutional prerogatives are based. Consequently, the independence of Congress, and its ability to function. as a coequal branch of Government, as envisoned by our Founding Fathers, has been seriously undermined. For example, the Supreme Court's decisions in Gravel and McMillan have a potentially significant chilling effect upon the ability of Congress to function independently. It is clear from this summary review that Congress has been made a party defendant in a large number of significant and complex legal actions. This fact requires Congress to review seriously its present

policies and procedures to assure that the congressional response to these challenges is vigorous and sustained.

It is surprising to me that despite the importances of the issues being raised in these court cases, Congress presently has no established capacity to assure that congressional interests are vigorously represented.

Instead, the Congress has increasingly come to rely on the Justice Department to serve as counsel for the Congress. This reliance itself raises serious separation of powers issues, especially when the congressional powers the Department is asked to defend are simultaneously being exercised by Congress in disputes with the executive branch.

It is precisely this sort of conflict which led the Justice Department to withdraw as counsel for Congress in the McMillan and Eastland cases when they reached the Supreme Court, after the Department had served as counsel in the lower courts. Although the Department itself acknowledged the conflict in these cases, I suggest such a conflict exists whenever the Department is called upon to defend congressional powers which may be exercised vis-a-vis the executive branch. I would like to submit for the record several documents which I believe will assist your committee in evaluating the Congress' present reliance on the Justice Department.

First: Let me submit a Justice Department statement on the criterion it presently employs in determining whether or not to serve as defense counsel for Congress. Enclosed with this statement is a list of cases which the Department has handled and declined to handle.1

Second: Let me submit a second statement by the Justice Department on the same topics.2

Third: Let me submit a study by the Congressional Research Service in 1971 entitled "Representation of Congress by Congressional and Private Legal Counsel in the Courts.3

Fourth: I would like to submit a letter from the attorney who took over the McMillan case after the Justice Department withdrew as defense counsel to a House committee. It describes in some detail the conflict which led the Department to withdraw.*

Finally: Let me submit excerpts from the Congressional Record which present the deliberations on what role Congress should play in the Powell and Gravel cases.5

Senator RIBICOFF. Without objection, all of the documents will be accepted into the record.

Senator ABOUREZK. The Separation of Powers Subcommittee, under the chairmanship of my predecessor, Sam Ervin, was established in response to a need to protect the powers, duties, and prerogatives of each branch from encroachment by another. Indeed, the first hearing held by the subcommittee in 1968 focused on a proposal to establish a counsel for Congress. S. 495 and S. 2731 are both outgrowths of that effort.

S. 2731 creates an Office of Congressional Legal Counsel which would be strictly controlled by the Congress. It could not bring or

defend any civil action without being requested to do so by at least one House of Congress, with two exceptions. Because Senate committees have been given the power by the Senate to bring civil legal actions to defend their constitutional powers, the counsel could represent Senate_committees in these cases without a request by the Senate itself. The counsel is also authorized at his or her own initiative to intervene or appear as amicus curiae in cases in which Congress is not a party, however, this authority may be exercised only after notifying Congress 10 days in advance of such action. Congress may then review the counsel's proposed action.

I believe the triggering mechanisms in my bill are preferable to those in S. 495. I understand that those who have criticized S. 495 have argued that the counsel's assistance would be invoked by groups with conflicting interests or groups with interests not in accord with those of the majority of the Congress. By permitting the counsel to act only when authorized by a House of Congress, both these problems should be alleviated.

To insure that the counsel's actions are in accord with the wishes of Congress, I have included two additional provisions in my bill. Section 10 sets forth certain substantive standards which require that whenever the counsel is authorized to provide representation, the counsel must always defend-and never attack-the constitutionality of statutes and all congressional powers.

Furthermore, section 11 provides a mechanism for the counsel to resolve any conflicts or canons of ethics issues which arise in the course of a litigation. In addition, where a conflict arises which prevents the counsel from providing legal counsel, this section provides that Congress may choose to reimburse a Member who must thereby retain private counsel.

Other parts of my bill are refinements of provisions already contained in S. 495. For example, S. 2731 makes it clear that Congress will not seek to supplant the Attorney General's authority to initiate and prosecute criminal actions. In addition, the provision conferring jurisdiction on the courts to hear congressional suits, specifically includes civil actions to secure testimony and answers to interrogatories as well as subpenas for documents.

With your permission, let me also submit a copy of S. 2731 for the record.

Senator RIBICOFF. Without objection.

Senator ABOUREZK. I want to thank you very much for your invitation to appear here. Let me say, as chairman of the Subcommittee on Separation of Powers, I would like to continue to support your efforts in this very important area.

Senator RIBICOFF. Just a few questions, Senator Abourezk.

Do you think a congressional legal counsel would have enough to do to keep him busy in normal times?

Senator ABOUREZK. Yes; I think so. It would be a small office, not a large office. The cases that I referred to earlier had been very long, complex, and drawn-out cases.

Senator RIBICOFF. Do you think it would be stimulating or exciting enough to be able to attract a person of high caliber?

1 Senate Journal 572, 70-1, May 28, 1928.

Senator ABOUREZK. Yes; I do. I say that, because I think an awful lot of lawyers would be interested in the constitutional issues that would always be involved in these kinds of cases.

Senator RIBICOFF. A question has been raised by a number of witnesses concerning the constitutionality of this office, based on the doctrine of separation of powers.

As chairman of the Separation of Powers Subcommittee of the Judiciary Committee, could we have your comments on whether you think this would be constitutional?

Senator ABOUREZK. Yes; it would be.

I do not see any grounds for a constitutional attack on this kind of an office. In fact, I personally believe that it would enhance the separation of powers, because of the inherent conflict in asking the Justice Department to represent Congress. This conflict arises because many of the cases that arise find the executive branch at odds with the legislative branch.

Senator RIBICOFF. In other words, it is for that reason that you would feel that it would be unwise for Congress to continue to rely on the Justice Department?

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Senator ABOUREZK. Unwise, and very foolish, in fact.

Senator RIBICOFF. I am inclined to agree with you, but I would like it on the record.

Would the congressional legal counsel play a role in a case such as a suit challenging the Federal election laws recently argued before the Supreme Court, let us say? Would that be something that the legal counsel would get involved in?

Senator ABOUREZK. That could be one of the exemplary cases for him or her to become involved in. If you recall, the Clerk of the House, the Secretary of the Senate, are members of the Election Commission. They are parties to that case. Initially an appearance was entered on their behalf by the Justice Department and it has never been withdrawn. However, the Department then proceeded to argue that the Commission was not constitutionally constituted.

It seems to me that this case would be one of the first that the counsel could be involved in.

Senator RIBICOFF. I wonder, Senator, whether you would be good enough to authorize the head of your staff to be available to consult with our staff as we start working on this bill, trying to get modifications and agreements with some of your provisions and ours.

I personally, and the committee, would be most appreciative if we could rely upon your staff to consult with us during these proceedings. Senator ABOUREZK. Mr. Ludlam has been doing the work on this project.

Senator RIBICOFF. From time to time, we would appreciate Mr. Wegman being able to consult with you to try to work these out. Naturally, we understand that we will take these up with Senator Abourezk and get clearance from him as to any understanding you may have.

I am most appreciative of your coming here, Senator Abourezk. Senator ABOUREZK. Thank you for your courtesy, Mr. Chairman. Senator RIBICOFF. Mr. Hamilton, please.

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