STATEMENT OF WILLIAM E. JACKSON, JR., ASSISTANT PROFESSOR OF POLITICAL SCIENCE, DAVIDSON COLLEGE

As a private citizen and a student of government, I welcome another sign that Congress is coming to life in reclaiming for itself a co-equal role in the constitutional balance. For despite evidence to the contrary in matters of taxation, judicial appointments, and some other areas of domestic policy, there is a widespread impression in the land that the legislative branch is the sometimes accommodating, sometimes quarrelsome subordinate of the executive branch in the realm of national security policy and in many important areas of domestic policy.

The only way that Congress can gain new respect for itself and stimulate the interest of the American people is to vigorously assert what constitu-tionally belongs to it-including the right to find out what is going on at the other end of Pennsylvania Avenue. I sincerely hope that the Subcommittee on Separation of Powers will follow Sen. Ellender's advice (in regard to the Administration's impoundment of funds) and pursue a "get-tough policy" in attempting to bring the executive branch into line.

I recognize that formal means may not be the best way to solve all the substantive problems involved in the separation of powers debate. With all due respect to former Secretary of State Rusk, however, it seems obvious that the problem of executive secrecy and non-communication with the legislative branch has long since passed the point where it can be handled on "the basis of comity and cooperation." There must be the will to cooperate in the White House and in the so-called "permanent government."

As numerous experiences of Senators and Representatives over the last several years illustrate [See the testimony of Senators Fulbright, Mathias, Roth, Symington and Tunney before this subcommittee.], there has been a serious erosion in voluntary cooperation; indeed, Congress on occasion has been treated with ill-concealed contempt by the executive officers of our government. It is therefore imperative that Congress employ statutory means to change the habits of the Chief Executive and his subordinates.

It should be recognized that the politically easier and more popular route for Congress to follow is to let the President have his way and "adapt" to the further erosion of its legislative and administrative oversight powers. In other words, Congress can be nice and respectful toward the bureaucratic experts and the "leader" in the White House. Or it can, with difficulty, earn the public's respect (for separation of powers) and revive its legitimate functions by insisting upon altering the present relationship and exercising a leadership of its own. [CF. Samuel P. Huntington, "Congressional Responses to the Twentieth Century," in Ronald Moe (ed.), Congress and the President: Allies and Adversaries (1971).]

By forcing the constitutional issues, no doubt things will get worse before they get better in relations between the branches. But conflict within constitutional limits stimulates the system's creative impulses. And Congress as an institution will be stronger as a result.

Indeed, the President may be made stronger vis-a-vis the bureaucrats, who are always willing to play the White House off against Capitol Hill. Strengthening Congress does not necessarily detract from the power and effectiveness of the President. They can be allies against the "Fourth Branch of Government" while engaging as constitutional adversaries. Richard Neustadt has even urged: "Politicians at the two ends of the Avenue unite!" in the common struggle against entrenched officialdom. [“Politicians and Bureaucrats," in David Truman (ed.), The Congress and America's Future (1965).]

A case in point is the proposal by Sen. Fulbright (S. 1125) to permit the withholding of information from Congress only on the basis of a formal invocation of executive privilege approved by the President. It seems obvious that this requirement would facilitate compliance with the March 24, 1969, memorandum of President Nixon to the heads of all executive departments and agencies stating: "Executive privilege will not be used without specific Presidential approval." As the Deputy Comptroller General testified on July 28. S. 1125 assumes the fact of the existence of executive privilege and makes an effort to restrict its exercise to the President or by his written direction. I submit that the Presidency, as much as Congress, needs to be protected from the labyrinthine technianes for withholding information described by the general counsel of the Defense Department. Mr. Buzhardt, before this subcommittee.

The time is right for these hearings. Congress, like all other institutions of government, is bound not only by law and custom but also by the context of the times. The legislative branch functions in a broader political setting; it more often reflects the political climate than it shapes it.

The Nation is in the throes of reaction to Vietnam. A considerable majority of our people feel that the decisionmakers of the government, especially the White House, led this country into a conflict on foreign soil in which the possible gains will never outweigh the registered costs. The people are in the mood for Congress to stand up to the President. Restoring an effective balance between formal powers in our government is one of the most effective means of reducing the credibility gap and restoring trust in public authority.

An observation. In recent years I have seen on numerous occasions people gathered around their TV sets react with great enthusiasm to news stories showing Senators and Representatives replying to the policies and rationalizations of the White House and cabinet secretaries. Congress should not underestimate its potential standing with the people who it, too, represents. The congressional image is enhanced whenever the members are knowledgable and articulate spokesmen. For examples: the articles on Wilbur Mills' power and ideas as head of the Ways & Means Committee; the extensive media coverage for Sen Ervin's staunch resistance to governmental invasions of privacy; Sen. Fulbright's persistent investigation into the origins and conduct of the Vietnam War; Sen. Mansfield's advocacy of a way out of that war; Sen. Proxmire's ability to wrestle with the executive experts on economic questions.

The time is right also because one party is in majority control of Congress while another party controls the White House. This gives greater vigor and substance to the engagement. A link is possible between a resurgence in party fortunes and an enlarged role for the legislative branch.

II

Now to the fundamental problem posed by these hearings. The American political system has become deranged at the national level in recent times in favor of the executive branch and at the expense of the legislative branch.

There have been times in our history when the pendulum swung the other way. Woodrow Wilson, in his first book Congressional Government (1885), found that Congress was the central power in the American system and that the Presidency had become a weak sister by comparison. But early in the twentieth century, Wilson wrote another book, Constitutional Government in the United States, finding that the President was at the helm of the national government: "His office is anything he has the sagacity and the force to make it." With some exceptions just after Wilson, the Chief Executives ever since have been "the vital center of action in our whole scheme of government" (John F. Kennedy).

There is nothing inevitable about presidential predominance, however, as some seem to believe. Walter Lippmann wisely suggesetd 16 years ago in an introduction to a new edition of Congressional Government that at times the political system works as Wilson described it in his first book and at other times it works as he described it in his second book. Lippmann went on to say: "There exists, one might say in limbo, a third book describing the American system in its ups and downs." If Wilson after his Presidency had written such a third book he might have taken a new view of the balance of power, showing "that it is not a stable balance, that the tendency of the system is to become unbalanced-and especially after wars when Congress is, for a time. predominant." [I am indebted to Douglass Cater's Power in Washington for the Wilson-Lippmann analysis.]

Perhaps the third book should have a different message: that it is possible for the legislative and executive branches to co-exist with both possessing impressive and sometimes conflicting, sometimes complementary powers in various areas of national policy. If I understand the purposes of the Subcommittee on Separation of Powers, no one is suggesting that the legislative branch become predominant again (which is impossible) but only that glaring imbalances be corrected and constitutional emphases be reaffirmed (which is possible). Sen. Ervin opened these hearings by acknowledging the conflicting principles involved and recognizing that governmental responsibility must be shared in our system.

A system with constitutional balance has been described by John Saloma in his Congress and the New Politics (1969): "It accepts the executive reforms of recent years that have led to executive-centered government but also sees need for the full development of corresponding congressional roles, especially in appropriations and in administrative oversight or supervision. It also expects Congress to assume greater initiative in legislation in areas where the President has not acted. *** The constitutional balance model assumes a strong but independent President and Congress. *** Party roles are secondary to constitutional-institutional roles. *** Roles may shift between the Executive and Legislature, but balance is preserved. The President may assume responsibilities for an executive budget, legislative clearance, administrative reorganization, and delegated legislation; but the Congress develops corresponding responsibilities: audit, administrative oversight through authorization and appropriation, the legislative veto. The constitutional model is not static but, instead, adaptable to new definitions of constitutional roles which maintain the sharing of powers among separated institutions that characterizes our governmental system.*** [T]he constitutional model assigns greater importance to rational-legal procedures, free discussion and debate, and compromise or consentual decision. Congress functions as a deliberative body that makes important decisions by free forming, rather than partisan, majorities; and the President respects this deliberative role assigned to Congress." (Italics added.) I assume that this is the goal of these hearings on executive privilege and the earlier hearings held by this subcommittee. Admittedly, it may take a little Whiggery in rhetoric to arouse the attentive public so that greater meaning can be given the constitutional model. But it is absurd for executive branch witnesses to quote Madison's warning against legislative supremacy in Federalist No. 48: "The legislative department derives a superiority Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments." [As quoted by Assistant Attorney General Wozencraft before the Subcommittee on Separation of Powers, September 15, 1967.]

More relevant quotes from Madison for these times are found in Federalist No. 47: "The accummulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." And at another place in No. 48: "After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each . . ."

The concern of Congress is to maintain institutions sharing powers and to cause a reliance on equitable process as a prerequisite to political freedom and enlightened policy.

III

What are the specific issues involved in trying to provide "some practical security" for the legislative branch? They are familiar ones, having been described in hearings before the Subcommittee on Constitutional Rights (also chaired by Sen. Ervin); the Senate Foreign Relations Committee and its Subcommittee on U.S. Security Agreements and Commitments Abroad; the House Subcommittee on Government Information; and the House Subcommittee on National Security Policy and Scientific Developments-among others.

Of greatest importance, the Subcommittee on Separation of Powers has chosen to focus upon the use of executive privilege and other devices for withholding information from Congress or for parceling out to Congress only what the Executive wants known.

Government officials control a process vital to the health of democracy when they regulate the flow of information. The great danger of such control was accurately expressed by Harrison Wellford: "Information, especially timely information. is the currency of power." The exercise of this control is felt throughout the length and breadth of government today-including departments and agencies concerned only with domestic policies, as illustrated by Sen. Roth and Mr. Wellford.

The impact is heaviest in the areas of foreign and defense policies, where the executive branch comes closest to having monopoly power over information. Consider these recent estimates in congressional testimony: 1) over 30.000

persons in the executive branch have the power to wield the classification stamp; 2) the Departments of State and Defense and the Atomic Energy Commission have over 20 million classified documents in their files; 3) Congress appropriates approximately $15 billion annually without most of its members or the public or the press knowing for what purposes the money is to be used. Control over information can be used to manipulate opinion. And, as Prof. Francis Rourke has stated, "the ability to manipulate opinion has given democratic government a powerful new weapon for controlling the electorate to which it is in theory subordinate." [Secrecy and Publicity: Dilemmas of Democracy (1961).]

One might add that it is a powerful weapon for manipulating the legislature with which the executive is in theory co-equal. The Gulf of Tonkin incident and the ABM debates conclusively demonstrate that executive leaders, through the techniques of selective publicity and the suppression of information-not to mention unwitting bureaucratic misinformation-can go a long way toward shaping the contours of majority opinion in Congress. The recent Pentagon Papers provide ample evidence of the White House and the bureaucracy leading Congress and the public in one direction while thinking and acting in another.

If Congress is to tolerate executive-centered government, it must maintain and extend its oversight of administration. This clearly requires information, at Congress' call, and not spoon-feeding by the Pentagon, H.E.W., or Agriculture. While it may be true that Congress has a greater capacity for legislative performance in some policy areas than in others, I submit that Congress' right to know through its committees is uniform in all areas. As Sen. Symington stated, information should be "supplied as a matter of right and not be a matter of constant negotiation."

Congress is at a considerable disadvantage, however, in its ability to gather information, especially in foreign and defense policy areas. The executive branch is an enormous information collection machine while Congress, in Sen. Mathias' words, "must rely for information partly upon what it reads in the papers, partly upon what it can get from experts outside government, but most of all upon what the Executive branch chooses to tell it." Through the classification process it can not only prevent Congress and the public from obtaining information; "it can keep them from even knowing that it exists." Senator Ervin and others have also been concerned with other dangers posed by a predominant executive. Examples are: 1) the usurpation of war powers by the Presidency; 2) the impoundment of funds by the President for programs authorized and appropriated for by Congress; 3) the misuse of the pocket veto; 4) the invasions of privacy by the vast collection agencies located in the executive branch.

IV

In approaching proximate solutions to these problems certain precautions and admonitions are in order.

We are talking about how power should be organized and shared in the national government. We are talking about a postwar trend in the executive branch's relations with Congress. Let us make sure, then, that we do not confuse individual men in the Presidency and institutional relationships. It is relevant to note here that both Sen. Hugh Scott and Sen. Mansfield have given their support to proposals to place restrictions upon the warmaking powers of the President.

Let us make sure that we distinguish between the White House and the Executive Office of the President on the one hand, and the executive bureaucracy on the other. Has the Presidency, in an effort to escape the claws of the "permanent government," at times somewhat unconsciously isolated itself from Congress? It is possible to understand the special role of Henry Kissinger in these terms. Any curbing of presidential practice should not undermine the Presidency's capacity to run the executive branch.

Congress is no match for the President when the two are "eyeball to eyeball" in a constitutional test. The President is represented in the legislative process; indeed, he interferes with it when he impounds funds and exercises item vetoes. How is Congress represented in the Presidency? With what can Congress respond or bargain? The bargaining is largely one way, with the President holding most of the trumps.

To put it harshly, how many armies does Congress have? This is not meant to be a flippant question. The raw power at the command of the President radiates into every relationship with that office. Power realities between institutions are inseparable from public conceptions of those institutions. Both are at the root of Congress' problem.

Congress can criticize and publicize, as these hearings are doing. It can talk about, and sometimes pass, legislation to stop something the Administration has already done.

We have one President operating in an executive-centered system side by side with a Congress of "miniature legislatures" striking their own balances or compromises with the bureaucracy and the White House. It is very difficult for Congress to take decisive collective actions. To the public reading the newspapers it seems that Congress has no final sticking power-but is constantly caught up in authorization and appropriation legislation in both houses with no discernible congressional impact on the issues of the day. The press, incidentally, is prone to report fragmentally and play up discord rather than noting the laborious accomplishments of the majority.

(Does anyone remember that Congress gave the President wage-price control power he did not want, because the majority perceived the seriousness of the economic problems? Yet, the President's recent actions reinforce his "Superman" image with the public.)

V

How can a significant shift in the actual balance between the legislative and executive branches be engineered while maintaining continuity in the national government?

Over time, many innovations are possible, such as thorough legislative oversight of the budget of the Executive Office of the President and the White House staff. Or the Joint Committee on Atomic Energy precedent could be followed in all legislation authorizing the establishment of new departments and programs. These are "radical" solutions.

But for now, what is possible and desirable? I hope more than the old habit of Congress sticking its fingers into dikes trying to prevent the Executive flood. There must be some new attitudes, as well as some new laws.

Of course, the problem of relative power in the national system has no determinate solution. What is most needed is Congress on guard to protect its collective identity in its legitimate areas. There must be a willingness on the part of congressional majorities and special power centers (such as Appropriations committees and Ways & Means) to stand together on institutional balance tests. The majority will in Congress must be respected.

It must be frankly admitted that the members of Congress are to blame for being willing to delegate and bargain away legislative prerogatives without much thought given to long-term erosions in their collective power. Further, Congress has invited the manipulation of information by the executive branch. How common it was, for example, prior to the ABM debate, for Senators and Representatives to give uncritical acceptance to executive information and secrecy in national security matters while winking at the selective leaking of information by the Pentagon, sometimes through Senators themselves.

How many members of the Senate and the House Armed Services Committees have lamely remarked at one time or another: "The problem is that we are not military experts and we have to rely upon what the military tell us. Who are we to say 'no' to the military people?"

All by way of saying that any laws passed by Congress to curb the practices of Presidents and their subordinates must also be accompanied by a change in the habits of some members.

Let me interject here an admission of complicity on the part of political scientists. We have generally exhibited a pro-executive bias and helped spread the image of the President as "Superman." [See Thomas Cronin, "Superman, Our Textbook President" in The Washington Monthly, October 1970.] There are many of us who should be "eating crow" in Mike Mansfield's office because of the presidential cult we helped to spread to a greater or lesser degree. [See "The Harvard Brain Trust: Eating Lunch at Henry's, Eating Crow at Mike's," in The Washington Monthly, September 1970.] An important exception to this generalization is Prof. Alfred de Grazia's Congress: The First Branch of Government (1966). It contains a catalog of proposals to make the legislature supreme; it is heavily Whig in orientation.