would continue to carry on routine inquiries, but would enable these committees to perform their historic functions more adequately. There were numerous precedents, he said, for the creation of ad hoc commissions, such as the Wickersham, TNEC, and Hoover Commissions; his bill would merely standardize and formalize that procedure. Adoption of the proposal would reduce the workload on Congress and eliminate frequent overlapping and duplication of investigation of similar subjects between the two Houses." Senator Ives, cosponsor of the bill, claimed that the proposal would remedy many of the defects in existing investigative practices, while retaining initiative and responsibility in Congress. He added that the commissions to be created under this bill would also be able to look into exceptional administrative problems which were beyond the jurisdiction of standing congressional committees. The addition of three members of the public at large to the investigating group would minimize the excesses of political motivation, increase its perspective, and reduce the workload on an overburdened Congress. "The bill was offered," said Senator Ives, "as a truly bipartisan approach to the entire problem of congressional investigations of the executive branch."" 40 Elsewhere, the Senator claimed that a new approach to the problem of legislative investigations was badly needed. The existing system had worked satisfactorily for routine inquiries, but "the ordinary congressional committees have neither the time, the technical competence, nor the capacity for impartiality" which major questions demand." He rejected current proposals for the substitution of Presidential commissions because Congress must have its own first-hand information and is jealous of its powers and prerogatives. Special commissions authorized by Congress and appointed by the Chief Justice, along the lines of Lindsay Rogers' suggestion, might lack legislative membership and their selection by the Chief Justice had its objections. Ban on special investigating committees Prior to the Eightieth Congress it had long been the custom of both the House and the Senate to create special or select committees to conduct special investigations. In the early years of our National Government Congress referred its business to a legion of select committees. For every bill and petty claim a separate special committee was set up. In the Third Congress, there were 350 such committees in the House alone. But their number rapidly declined with the development of the standing committee system. During the Seventy-ninth Congress only a dozen special committees were established. Although many famous investigations have been conducted by special committees, the Joint Committee on the Organization of Congress recommended on March 4, 1946, that special committees of investigation be abandoned." The Senate approved this recommendation in the legislative reorganization bill on June 10, 1946, but this prohibition was struck from the bill before it reached the House floor and did not appear in the final act. Although creation of special investigating committees is contrary to the spirit, if not the letter, of the Legislative Reorganization Act of 1946, eight of these committees were established during the Eightieth Congress and nine during the Eighty-first Congress." The argument against the use of special committees for investigative purposes, as made by Senators Thomas, Morse, Holland (D., Fla.), Donnell (R., Mo.) and others, runs as follows. The jurisdiction of the standing committees has been so comprehensively described in the 1946 act as to cover every conceivable subject of legislation. Therefore, to create a special committee is to trespass upon the assigned jurisdiction of some standing committee. The standing committees of Congress have been authorized by the Legislative Reorganization Act to exercise continuous oversight of the execution of the laws by the administrative agencies within their respective jurisdiction. They have been equipped with professional staffs and expert investigators to assist them in performing their oversight function. The investigative function of Congress should be performed, therefore, by its standing committees which have been empowered and equipped for the purpose, instead of relying upon special investigating committees which 39 96 Congressional Record 8732-8737 (June 15, 1950). 40 Ibid., at 8738 (June 15, 1950). 41 New York Times magazine 58 (August 27, 1950). 42 S. Rept. No. 1011. 79th Cong., 2d sess. 6 (1946). at the Crossroads, 55-56 (1946). Consult also Galloway, Congress 43 In the 81st Cong. the subjects covered were small business, organized crime, roof and skylights in the Senate; and small business, lobbying, use of chemicals, campaign expenditures, veterans' education, roof and skylights in the House. 85166-51-42 are sporadic in nature and cannot introduce legislation to give effect to their recommendations. Moreover, the reformed rules limit Members to service on one or two standing committees each, with minor exceptions, so that they can meet their legislative responsibilities more effectively. If, in addition, Members are appointed to serve on special committees, the burden of committee work will be correspondingly multiplied and the old evils of poor attendance and scattered attention will return. Use of special committees might also lead to a revival of the use of staff personnel borrowed from downtown departments with all the disadvantages of that practice. Creation of special committees to deal with subjects already assigned to standing committees would also be a burden to, and impair the efficiency of, the executive agencies of the Government by requiring their officials to repeat their testimony on the same subjects before several congressional committees. Furthermore, sporadic inquiries by select committees lack continuity and fail to provide the members of standing committees with direct knowledge of the information gathered. In cases where legislative action is indicated, standing committees find it necessary to do much of the work over again. Special investigations should be conducted by the subcommittees of the reorganized standing committees having jurisdiction of the subject matter involved. This has been done, for example, in the field of national defense, where the old Truman-Mead select committee has been replaced by a new "watchdog subcommittee" of the Senate Armed Services Committee." Modernization of the congressional committee structure, achieved by the Legislative Reorganization Act, was the keystone in the arch of congressional reform. To set up a series of special committees would be a regressive step that might lead to the ultimate destruction of this reform. A subcommittee of a standing committee can accomplish as much good work as a special committee, given adequate leadership, powers, and personnel. Finally, it is argued that the diffusion of energy and responsibility among many standing and special committees, with overlapping jurisdictions, is not conducive to the formulation of coherent and consistent legislative policies. Nor is it conducive to the development of a well-recognized and continuing relationship with executive agencies." Voluntary adoption of procedural rules A third proposed reform in the conduct of congressional investigating committees is that they voluntarily adopt rules of procedure to govern the conduct of their hearings and treatment of witnesses. During the past 3 years three subcommittees of Congress have taken this step. The first was the Procurement and Buildings Subcommittee of the House Committee on Expenditures in the Executive Departments. On April 8, 1948, Representative George H. Bender (R., Ohio), chairman of this subcommittee, made public 17 rules of procedure which had been drafted by its chief counsel, Mr. Henry H. Glassie, and unanimously adopted. They relate to such factors as the manner in which hearings are to be held, transcript of hearings, the right to counsel, subpenas, and final reports. These rules were designed primarily to assure all persons a fair hearing and to avoid cluttering the record with irrelevant testimony and baseless defamatory remarks. It is required that evidence be kept within reasonable bounds of relevancy. Witnesses are permitted to read sworn statements into the record, and any person who believes that evidence given to the subcommittee is defamatory of his reputation may file into the record a statement in regard to such evidence. The second subcomittee to adopt self-imposed rules was the Investigations Subcommittee of the Senate Committee on Expenditures in the Executive Departments, of which Senator Ferguson (Republican, Michigan) was chairman. These rules provide that no major investigation shall be undertaken, and no public hearings held, without unanimous approval of the subcommittee or majority approval of the full Senate committee. A transcript of all hearings is to be kept, which in the case of executive hearings is not to be released without approval of a majority of the subcommittee. Unless a majority of the subcommittee determines otherwise, all witnesses have the right to be advised by counsel. In public hearings, persons being investigated are permitted to crossexamine any other witness whom the committee calls." 44 Consult Cook, Senate Preparedness Subcommittee, p. 634 infra. 45 Compare 93 Congressional Record 284, et seq. (1947); ibid., at 344 et seq. (1947); ibid., at 568-570 et seq. (1947); 95 Congressional Record 12590-12592 (1949): 96 Congressional Record 2011-2034 (February 20, 1950); ibid., at 6311-6318 (May 3, 1950). 40 S. Rept. No. 5, 81st Cong., 1st sess. 3-4 (1949). In its first annual report the Investigations Subcommittee stated that it had been the practice at the opening of executive or public hearings for the chairman to make a statement for the record concerning the subject and purpose of the specific case under investigation. It had also been the policy of the subcommittee, in those cases in which public testimony was given which affected adversely the reputation of a person or otherwise defamed him, to give that person reasonable opportunity to call witnesses in his own behalf and otherwise to answer adequately the charges made against him. In view of the many different situations which might possibly arise, it was deemed impracticable, according to the report, to set down any rigid rule for application in all cases involving the reputation of a person under investigation. The third subcommittee to set up certain guideposts of conduct was the watchdog subcommittee of the Senate Committee on Armed Services. Although this subcommittee did not go as far as the Bender and Ferguson subcommittees in adopting voluntary rules of procedure, the statement of its chairman, Senator Lyndon B. Johnson (Democrat, Texas), regarding its policies and procedures, showed a commendable spirit of self-restraint. He asserted that the subcommittee had no intention of hunting headlines; its work would be conducted primarily in executive sessions. Politics would be left at the committee-room door. The committee would be very diligent not to become a Monday morning quarterback club, second-guessing battle-front strategy. Especially, I have confidence," said Senator Johnson, "that the subcommittee will, in all its inquiries and recommendations, be frank, impartial, and straightforward-blunt but not unfair, zealous but not persecuting, helpful but not compromising." Imposition of minimum standards 1947 The final and most frequent proposal in recent years for the reform of congressional investigations is the imposition, by statute or rule, of minimum standards of committee conduct. This proposal has found expression in bills and resolutions introduced in the Eightieth and Eighty-first Congresses by Senator Lucas and Representatives McCormack (Democrat, Massachusetts), Sabath (Democrat, Illinois), Holifield (Democrat, California), Carroll (Democrat, Colorado), Buchanan (Democrat, Pennsylvania), Javits (Republican, New York), Douglas (Democrat, California), and Klein (Democrat, New York). Specific codes of fair play have also been advocated by various spokesmen for the legal profession, including a group of 45 law-school deans and professors, Judge Wyzanski, the New York City Bar Association, Messrs. Henry H. Glassie and Thomas M. Cooley-former committee counsel and practicing attorneys. The American Civil Liberties Union has also offered a bill to establish fair hearing procedures, and the Washington Post has set forth a code of 10 rules which it thinks Congress should adopt." Comparative analysis of these proposed mandatory codes, made by the writer, shows that upward of twoscore separate safeguards for the rights of individuals have been suggested. The number of proposed safeguards ranges from three in the Wyzanski suggestions and four in the Arnold-Fortas-Porter proposals to 18 in the Glassie-Cooley code and 19 in the Holifield bill. There is, of course, a good deal of duplication in the specific suggestions. Altogether 41 distinct safeguards are found in the 14 proposed codes under review. The reader's attention is invited to the comparative tabular analysis of the 14 proposed mandatory codes in the Appendix. In support of mandatory minimum standards it is argued that as long as investigating committees are free to make their own rules of procedure, and change or disregard them at will, the danger of abuse will not be removed. The investigative process is so vital an adjunct of legislative effectiveness that Congress ought not to allow its perversion to publicity seeking or vindictive ends. The prestige and good functioning of the Congress are the real stake, and no half-way measure should stand in the way of Congressional action to establish rules of proper procedure for all its investigative units. When he was President of the Senate (1797-1801) Thomas Jefferson made a suggestion which indicates that legislation on this subject may be long overdue. "Perhaps Congress," he wrote, "in their care for the safety of the citizen,、 as well as that for their own protection, may declare by law what is necessary and proper to enable them to carry into execution the powers vested in them, and thereby hang up a rule for the inspection of all, which may direct the 47 96 Congressional Record 11537 (July 31, 1950). 48 In a series of 12 editorials entitled "Turning on the Light" between January 12 and March 9, 1948. conduct of the citizen, and at the same time test the judgments they shall themselves pronounce in their own case." 99 49 The bills introduced in the House for the reform of committee procedures were referred to its Committee on Rules which has not yet acted upon any of them. In the Senate the Lucas bill was referred to the Committee on Rules and Administration which held four days of hearings on it during July and August of 1949. Eleven witnesses were heard including Senators Lucas and McMahon (D., Conn.), Dr. Edward U. Condon, and spokesmen for the A. F. of L., CIO, ADA, New York City Bar Association, and Jewish War Veterans. Although there was some criticism of specific sections of the Lucas resoultion, the preponderant weight of the testimony favored the resolution in principle. Chief criticism of the Lucas proposal came from Mr. George Meader, former chief counsel of the Truman-Mead committee. Mr. Meader, who has since been elected to the House of Representatives, believed that adoption of the proposal might easily obstruct the work of congressional committees and impair the efficiency of investigative activities. The adoption of rules of procedure, he thought, should be left to the discretion of each committee. The way to strengthen the investigative function, he suggested, would be to equip Congress with better staff aids. Other suggestions 50 After the hearings on the Lucas resolution, Senator Myers (D., Pa.), who presided at the hearings, informed the Senate that the hearings had demonstrated the need for a simple code of ethics to protect thoses appearing before investigating committees from unfair and defamatory treatment.51 Although the treatment of Dr. Condon by the Committee on Un-American Activities, as described by him at the Senate hearings, indicated the need for passing the Lucas resolution, no action was taken upon it subsequent to the Committee hearings. In addition to the four major reforms described above-broader delegation of the investigative function, a ban on special committees, voluntary committee adoption of codes of fair play, and mandatory minimum standards-several other possible reforms have been suggested. Aside from his three minimum standards, Judge Wyzanski suggests five other steps for further study: that a private person should not be compelled to testify in camera unless the majority of the committee explicitly rules to that effect; that a witness should not be compelled to testify unless at least one member of the committee is present in addition to the interrogator; that in any serious claim of privilege the witness ought to have the right by motion to urge his points before the whole committee that a person who has been adversely criticized by a witness before a committee should have the right to file with the committee a limited number of written questions which should be answered in writing by the hostile witness, unless the committee by majority vote otherwise directs; and that subpoenas to private persons should require the concurrence of a majority of the committee.52 Professor Carr suggests improved personnel of investigating committees and their staffs.53 Lloyd N. Cutler, Washington attorney, proposes that Congress enact a statute creating a civil penalty for false testimony before a congressional committee. The penalty would be the right of any injured person to collect damages in a Federal court action against the false witness. Senator Taft (R., Ohio) suggests that Federal officers and employees should not be subject to reprisals by reason of their appearance and bona fide, truthful testimony before congressional committees.55 Others have suggested that the supervision of committee behavior be made a matter of party responsibility to be exercised by the party policy committees in each chamber, and that members be disciplined who violate the rules of fair play. In the last analysis, some believe that the problem of fair play will not be solved by court decisions, statutory regulations, or procedural codes, but by individual self-restraint, the development of a sense of personal responsibility in exercising the investigative power, and the moral censure of an outraged Jefferson's Manual of Parliamentary Practice, sec. 299. 50 Reform in Procedure before Congressional Committees, hearings before the Senate Committee on Rules and Administration on Sen. Con. Res. 2, 81st Cong., 1st sess. 97 (1949). Consult also Meader, Limitations of Congressional Investigations, 47 Mich. L. Rev. 775 (1949). 51 95 Congressional Record A4813 (July 26, 1949). 62 Wyzanski, op cit., supra, note 9. 53 Carr, How To Improve Congressional Inquiries, New York Times Magazine 5 (August 29, 1948). 54 In a letter to the New York Times, sec. 4. p. 6, column 7 (September 5, 1948). 55 Sen. Con. Res. 84, 81st Cong., 2d sess. (1950). public opinion. "The problem," says Walter Lippmann, "is not one which is likely to be solved by an ingenious idea. . . The problem does not lie on the plane of formal law-making, but on the plane of the mores of the nation. We do not have, as yet, a body of intellectual and moral habits, customs, and attitudes to fit the realities of modern popular government." Senator Pepper summed up the situation neatly 20 years ago when he said: "Congressional investigations in general and senatorial inquisitions in particular are not going to be controlled by the Supreme Court. Nor are they going to be regulated by statutes or procedural devices. Let it once for all be understood that the power of inquiry exists, that its possession is a great public trust, and that the American people are going to pour out the vials of their wrath upon those who prove themselves unworthy of the trust. We have evolved worthy standards of conduct for professional baseball players. We are hopeful of a similar evolution in the case of prize fighters. It would be lamentable if only Senators were to be classed as invincibly barbarous." CONCLUSION At bottom the problem is thus seen as one of protecting the rights of individuals without impairing the performance of the investigative function. The methods employed by a few investigating committees in recent times have caused public criticism of Congress and impaired its prestige. Congress may continue to decline in popular esteem unless steps are taken to curb the misuse of its investigative powers. Perhaps the best remedy would be the development of a sense of self-restraint on the part of committee members themselves. But that cannot be guaranteed. Another course of action would be to follow the advice of Justice Frankfurter, who maintained that "the methods and forms of each inves tigation should be left for determination of Congress and its committees, as each situation arises." 58 But it seems evident that rules imposed by individual committees upon themselves, while a step in the right direction, are not the final answer. No halfway measure should stand in the way of congressional action to establish rules of proper procedure of its investigating committees. The elements of a workable code are to be found in the best practices of successful investigating committees. To avoid confusion and promote uniformity, a code of fair conduct for all investigating groups might well be adopted by the House and Senate as part of their standing rules. Such a code would give Congress and the country a yard stick by which to test the performance of every committee of investigation. In the Federal Administrative Procedure Act Congress has provided a code of procedure for administrative agencies." This action should now be matched by the enactment of a code for the guidance of its own investigators. APPENDIX SAFEGUARDS OF RIGHTS OF PARTIES UNDER INVESTIGATION BY CONGRESSIONAL COMMITTES AS PROPOSED BY MEMBERS OF CONGRESS, ATTORNEYS, AND OTHERS 1. Any person who believes that testimony or other evidence given in a public hearing before any committee tends to defame him or otherwise adversely affect his reputation may, file with the committee a sworn statement, concerning such testimony, which shall be made a part of the record of such hearing. 2. Aggrieved persons may testify in own behalf, secure and examine not more than four favorable witnesses, and cross-examine hostile witnesses, 1 hour each, personally or by counsel. 3. Petition to invoke safeguard No. 2 must be filed within 30 days and acted on within 30 days thereafter. Petitioner must swear his purpose is not to delay or obstruct committee. 4. Right to be accompanied by counsel at public or private hearing as observer, but not as participant, or adviser while on stand, unless committee consents. 5. Evidence shall be relevant to subject of hearing. 6. Witness may have stenographic transcript of his testimony. 7. Committee shall not publish or file any report, interim or final, unless and until a meeting of the committee has been called upon proper notice and such report has been approved by a majority of those voting. 56 Lippmann, the Senate Inquisition, 84 Forum 132 (1930). 57 Pepper, Family Quarrels, 178-179, 184 (1931). 58 Frankfurter, Hands Off Investigations, 38 New Requblic 329 (1924). |