approval at a meeting called upon proper notice, and (3) publishing a statement or a report alleging misconduct or containing other adverse comment regarding any person without advance notice to such person.

Committee members and employees are prohibited from speaking or writing about the committee for compensation.

"Committee" is defined to include a standing or select committee of either House of Congress, joint committees, and all subcommittees.

Senator Lucas, in discussing the introduction of Senate Concurrent Resolution 44, announced on the floor of the Senate his support of the proper exercise of the investigative function of Congress. He contended, however, that the Senate War Investigating Committee's investigation of Howard Hughes had brought that committee and the Senate into disrepute and cited a number of editorials in support of that contention. He argued that requiring committees and their members and employees to be fair would enhance public respect for congressional investigations, thus strengthening them.'

16

It can be conceded that the strength and value of a congressional committee is derived from its public acceptance and prestige and that unfairness of congressional investigators detracts from the reputation of a committee and the Congress. However, it is doubtful that the provisions of Senate Concurrent Resolution 2 will succeed in preventing abusive action by legislators. On the other hand, the proposed rules will seriously impair both the investigative and legislative work of Congress.

V. COMMENT

Senator Concurrent Resolution 2 seeks to give persons claiming to be defamed their day in court. A legislative committee is not a court and cannot effectively discharge its investigative and policy-making duties operating as a court, with pleadings, motions, arguments, and rules of evidence. Furthermore, Senate Concurrent Resolution 2 gives persons claiming to be defamed more than a day in court. No court in which allegedly defamatory testimony might be received would halt the trial of the case to permit the aggrieved person to intervene and offer evidence as to the damaging remark.

Courts retain control of their proceedings at all times. The discretion of the judge is the final authority in his court, subject only to appeal. A legislative committee, however, under Senate Concurrent Resolution 2 would have no discretion whatever as to whether a hearing should be held, who should be called as witnesses, the propriety of questions asked upon examination or crossexamination, or the contents of statements to be filed with the committee as a part of its record.

If the committee sought to exercise such discretion, it would be subject to the charge that it was not sincere in its purpose to give a fair and complete hearing. If the committee does retain such discretion, the rules have little meaning because a majority of a committee can now insist upon fairness if they can agree on what is fair.

The fees and travel expenses of witnesses, stenographic, and printing expense, and other costs incident to holding such a hearing would be borne by the committee out of its appropriation. In a court, litigants must bear the costs

of litigation. This acts as a deterrent to excessive litigiousness. The effect of the rules proposed in Senate Concurrent Resolution 2 will be to take the control of its proceedings away from Congress and place it in the hands of individual citizens. Senate Concurrent Resolution 2 would provide a means for spotlight seekers to indulge their proclivities in congressional hearings almost without limit.

The testimony or evidence considered by a person to be defamatory might consist of an irrelevant, gratuitous remark made by a witness before a committee, which the committee could not anticipate or prevent. Nevertheless, under Senate Concurrent Resolution 2, the committee would be required to sit and hear a petitioner's statement and the statements of four witnesses called in his behalf and a cross-examination of the alleged defamer or defamers for hours, if not days. It is likely that the petitioner in replying to his defamer might give testimony leading the latter to believe he had been defamed; whereupon another petition would be filed, requiring a further hearing by the committee. This could continue indefinitely.

A trial of Communists in New York in which weeks were consumed examining

16 94 Congressional Record 1672 (February 25, 1948).

the jury selection system in Federal courts" should furnish convincing proof that there is a real likelihood that advantage would be taken of the procedural provisions of Senate Concurrent Resolution 2 as suggested above.

The time of legislators is now inadequate for intensive study of problems of legislation. The forum of a legislative committee ought not to become the battling ground of vituperation and attack and counterattack, converted from a policy-making agency into a court for trying slander and libel cases. This would not enhance the dignity and prestige of Congress and would render investigations and legislation worse-not better.

2

Corrupt, unintelligent, or unfaithful action against the public interest might well go unexposed because of the delaying, filibuster-like procedure of Senate Concurrent Resolution 2. Any lawyer for the defense is well aware of the advantage of delay. Maj. Gen. Bennett E. Meyers," Commander John D. Corrigan, former Congressman Andrew J. May, Henry and Murray Garsson, former Congressman James M. Curley" and the participants in the Teapot Dome scandal, as well as many others, would have welcomed the procedural opportunities which would have been extended to them by the provisions of Senate Concurrent Resolution 2, had it been in effect when their activities were under examination.

Senate Concurrent Resolution 2 is not confined to investigative committees ferreting out wrongdoing, but is equally applicable to all congressional committees and subcommittees. Suppose, for example, a petitioner, who is not required to be a citizen, claimed before the Senate Foreign Relations Committee that some testimony given at a committee hearing had detracted from his reputation because it implied inefficiency or bad faith on his part. Under Senate Concurrent Resolution 2, he could compel the Senate Foreign Relations Committee to sit and hear him, his witnesses and cross-examination of his detractors at length. An even more interesting case would be presented if the petitioner claimed that a member or employee of the committee had been the detractor and, under Senate Concurrent Resolution 2, claimed the right to cross-examine the Senator or a member of the committee staff.

Any rules, in addition to existing parliamentary rules, should be adopted committee by committee. The Bender subcommittee of the Committee on Expenditures in the Executive Departments of the House of Representatives, the Ferguson subcommittee of the Committee on Expenditures in the Executive Departments of the Senate, both in the Eightieth Congress, and the Un-American Activities Committee of the House of Representatives of the Eighty-first Congress, have adopted rules. Such rules, if found unworkable, can be amended by the individual committee. Rules enacted in a statute would have to be amended by statute, subject to Presidential veto. Rules adopted by concurrent resolution could be changed only by action of both Houses.

In any event, any rules, whether adopted by a committee or by the entire Congress, should clearly specify that they do not give rights which would permit a successful challenge to the validity of committee or congressional action or would constitute a defense to proceedings for punishment of a contempt of Congress. Unless this effect is specifically precluded, the whole subpena power of Congress is undermined. Thus, a useful means of obtaining facts as a basis for the enactment of wise legislation and for observing the administration of laws will be destroyed.

Section 5 of Senate Concurrent Resolution 2 adds nothing to present practices regarding attendance of counsel except that it gives a witness a right to have counsel present at a private hearing. Since section 5 allows an attorney to do no more than observe, unless the committee permits otherwise, the question of the value of this right naturally arises; the presence of one more person makes the control of the confidential nature of an executive hearing more difficult. As a general practice the Truman-Mead committee permitted counsel to be present in executive as well as public hearings. Situations may well arise, however, where it would be preferable not to have counsel present at executive hearings. The decision on this matter should be left in the discretion of the committee. Section 6 of Senate Concurrent Resolution 2 adds nothing to present law since a witness may now refuse to answer any question not pertinent to the inquiry."

17 See, e. g., New York Times, March 8, 1949, p. 1:8.

18 Hearings, investigation of the national defense program, pt. 43, 80th Cong., 1st sess. (1947).

19 Id., pt. 24, 78th Cong., 2d sess. (1944).

20 Id., pt. 35, 79th Cong., 2d sess. (1946).

21 Id.. pt. 12, 77th Cong., 1st sess. (1942).

22 Sinclair v. United States (279 U. S. 263 at 296-297, 49 S. Ct. 268 (1929); 52 Stat. L. 942 (1938), 2 U. S. C. (Supp. 1948), sec. 192).

Section 7 of Senate Concurrent Resolution 2 gives witnesses at private hearings a right to a copy of the testimony. Members and employees of a committee are subject to committee control for breaking secrecy, but a witness is not. If a committee loses control of the executive character of its actions the effect is to put an end to executive hearings, a useful method of informing Congress on matters which, for one reason or another, are not appropriate for public release. The temptation to "leak" confidential information to favored sections of the press is a strong one; human curiosity about something kept secret lends a quality of news interest to the material which its substance would not justify. Measures should be taken by Congress to prevent "leaks" of confidential material, but furnishing a record of secret testimony to witnesses is not one of them. Section 8 adds nothing to present rules since all committee action must now be by majority vote.

Section 9, requiring committees to give advance notice of adverse comment, is unwieldly. What constitutes adverse comment is subject to a wide difference of opinion. It is difficult enough under existing practices to prepare and obtain agreement of committee members on a report. The requirement of giving advance notice to an indeterminate class of persons and allowing them a "reasonable" time to oppose the committee's findings and conclusions would slow down and make extremely difficult the issuance of reports.

The Truman-Mead committee made it a practice to submit, on a confidential basis, a draft of a proposed report to Government officials and interested private individuals for comment as to the accuracy of the facts and the soundness of committee conclusions and recommendations. This is a salutary practice. It improves the quality of committee reports. However, the practice should be discretionary with the committee, not mandatory.

Section 10, prohibiting speaking and writing for compensation by committee members and employees, raises a question of basic policy applicable to all public officials. Payment for lectures or articles may be an avenue for improperly influencing the decision of a public official. Where this exists, it can be and should be punished under existing provisions of law. However, it is in the public interest that public affairs should be widely discussed. To prohibit payment to all public officials for lectures or articles might limit the amount of information avavilable to the public concerning national affairs. In any event, the principle would seem equally applicable to all public officials. Such a proposal should be carefully studied and adopted as a general provision of law, if it is desirable, rather than being confined to legislative committee work.

VI. CONCLUSION

It is agreed that "headline-seeking," "smear tactics" and "witch hunting" are reprehensible activities on the part of legislators or any other public officials. It may be more difficult to find agreement upon what constitutes those activities in any given factual situation. There are existing sanctions controlling such abuses in present parliamentary rules, in adverse press and public reaction, and ultimately in the defeat of a legislator at the polls.

Recognizing that legislators naturally seek to keep their names before their constituents, it is the writer's opinion that the great majority of Congressmen and Senators do not engage in unfair conduct. It seems unwise to destroy the flexibility of operations in legislative committees in their formulation of national policies and to impose limitations upon the discretion and power of all legislators merely for the purpose of restraining abuses by a few Members of Congress. Senators and Congressmen are entitled to the trust and confidence implied in their election to what, in effect, is the board of directors of the largest and most powerful institution in the world. Their responsibility is great. They ought not to be limited by inflexible, time-consuming procedures in discharging that responsibility.

A very thoughtful and judicious discussion of procedural rules for congressional committees was written by Charles E. Wyzanski, Jr., United States district judge of Massachusetts in the March 1948, record of the New York City Bar Association." Judge Wyzanski opposes the adoption of procedural rules for congressional committees until after further study, except that he suggests a witness should have the right (a) to have counsel present, (b) to file a written statement before the hearing is concluded, and (c) to have an accurate record kept of his own testimony.

23 Reprinted in 94 Congressional Record A1592 (March 11, 1948).

The avenue for strengthening the investigative power of Congress, and thus strengthening Congress itself, does not lie along the path suggested by Senate Concurrent Resolution 2. Rather, progress toward improved legislation will result from the acquisition by Congress of a staff of able employees, primarily for its committees, to study and investigate the facts of any subject and to advise, counsel, and assist committees and individual legislators in enacting legislation. Congress needs help in obtaining facts, not restrictions making it more difficult. When legislation comes to be based more upon studies of fact and less upon generalities, emotions, and prejudices, our system of government by the people, through elected representatives, will have proved itself workable in a modern, complex society.

APPENDIX

Text of Senate Concurrent Resolution 2 (January 5, 1949):

"Resolved by the Senate (the House of Representatives concurring), That the following provisions of this concurrent resolution are adopted as an exercise of the rule-making power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, respectively.

"SEC. 2. 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.

"SEC. 3. Such a person shall, in addition, have the right (a) to testify personally in his own behalf; (b) to have the committee secure the appearance of witnesses requested by him for the purpose of testifying in his behalf, and to examine such witnesses, either personally or by counsel, but no more than four such witnesses shall be called; and (c) to have the committee secure the appearance of witnesses whose testimony adversely affected him, and to cross-examine such witnesses, either personally or by counsel, but such cross-examination shall be limited to one hour as to any one witness.

"SEC. 4. Any person who wishes to avail himself of the rights accorded by section 3 shall, within thirty days of the receipt by the committee of the testimony complained of, file a petition with the committee requesting the fixing of a time and place for the receiving of testimony or the conduct of cross-examination and designating the witnesses to be summoned. Such a petition shall be accompanied by the sworn statement of the petitioner that the petition is not filed for the purpose of delaying or obstructing the work of the committee, but because his reputation has been unjustifiably damaged or otherwise adversely affected by false accusations or inference. The committee shall, within ten days after the receipt of such a petition, fix a time and place for the receiving of testimony or the conduct of cross-examination, which time shall not be later than thirty days after the receipt of the petition, and shall secure the appearance at such time and place of the witnesses designated in the petition.

"SEC. 5. Any witness summoned at a public or private hearing before any committee shall have the right to be accompanied by counsel. Such counsel shall be allowed to observe the hearing, but shall not be allowed to participate therein or to advise the witness while on the witness stand unless the committee, in its discretion, shall otherwise determine.

"SEC. 6. In the conduct of hearings, the evidence received shall, so far as possible, be relevant and germane to the subject of the hearing.

"SEC. 7. If the testimony of a witness at a private or public hearing before any committee is reported stenographically, such witness shall be entitled to a stenographic transcript of such testimony upon payment of the cost of the transcript. "SEC. 8. A 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 at such meeting. "SEC. 9. No committee or employee thereof shall publish or file any statement or report alleging misconduct by, or otherwise adversely commenting on, any person unless and until such person has been advised of the alleged misconduct or adverse comment and has been given a reasonable opportunity to present to the committee a sworn statement with respect thereto as provided in section 2. "SEC. 10. No member or employee of a committee shall, for compensation, speak, lecture, or write about the committee, its purposes, procedures, accomplishments, or reports, during the existence of the committee and while he is a member of the committee or in its employ.

"SEC. 11. As used in this concurrent resolution, the term 'committee' includes a standing or select committee of either House of Congress, a joint committee of the two Houses, and a duly authorized subcommittee of any of the foregoing." The CHAIRMAN. You may proceed.

Mr. MEADER. In addition, getting into the topic which Dr. Galloway asked me to discuss, the staffing of committees, I would like to offer to the committee an article I wrote for the University of Chicago Law Review this spring. The Review got out a symposium on congressional investigations, and my article was entitled "Importance of the Fact-Finding Process." I should like to offer it for the committee's information.

The CHAIRMAN. That may be published in the record. (The document referred to is as follows:)

[Reprinted for private circulation from the University of Chicago Law Review, vol. 18, No. 3, spring 1951]

CONGRESSIONAL INVESTIGATIONS: IMPORTANCE OF THE FACT-FINDING PROCESS

(By George Meader 1)

The investigative power of the Congress is the means through which Congress may, if it has the mind to do so, reassert the policy-making authority intended to be vested in it by the drafters of the Constitution.

Our national economy has developed amazingly in our rather brief national history of a century and a half, but our National Legislature has failed to keep pace with the demands upon it for the development of sound national policies and programs in a modern, complex, and mechanized society. This weakness in the Congress has resulted in the delegation to the executive branch of the Government of vast legislative authority. Legislation frequently is drafted in the departments or bureaus and presented to the Congress as an administration "must" bill. Loyal administration committee chairmen or committee members are expected to force the passage of such a bill with a minimum of amendments. This weakness also has induced Congress to announce broad objectives in general terms, then create boards or commissions with extensive but loosely defined authority to accomplish these objectives. The net effect of this weakness on the part of Congress is that national policies are not originated and determined by the representatives of the people, but for the most part are originated in, then spelled out by, the executive branch of the Government. This method of legislating is not in the interest of true democracy.

If this trend continues, with Congress becoming weaker and the executive branch of the Government becoming stronger, the adoption of national policies through elected Representatives will be a mere fiction. When that time arrives the equilibrium designed by those who drafted our Constitution will have been upset, and the protection of our citizens, through the system of checks and balances, from abuses of public power will have vanished. Equilibrium will be restored between the executive and the legislative branches only when Congress so equips itself that it can independently, and in its own right, originate and adopt national policies, expressed in sufficient detail and in unambiguous terms, and which, in the judgment of the Congress, are in the best interest of the country. I know of no means whereby Congress can assert its authority over national policies except through the expansion and improvement of its investigative power. In the field of debate, facts and logic are the only effective weapons. Control of the facts is control of the ultimate result. A Congress which is poorly equipped to gather facts, to sift them and make certain of their reliability, is a weak Congress. A Congress which lacks an effective fact-finding instrument is at the mercy of the executive branch of the Government, whose 2 million employees can gather information and, through omission and inclusion, through coloring and slanting, can support any program the administration cares to advance. There is power in facts. To decide without knowing the facts is certain to lead to error and unsupportable positions.

1 United States Representative (Second District of Michigan). Formerly counsel for the Truman-Mead committee and the Fulbright committee of the U. S. Senate.