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WHY IS THERE A NEED TO REAUTHORIZE THE CONFERENCE?
THURSDAY, JUNE 24, 2004
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in Room 2237, Rayburn House Office Building, Hon. Chris Cannon (Chair of the Subcommittee) presiding.
Mr. CANNON. The Subcommittee will please come to order. I apologize for being late. We appreciate your being here and I apologize to this esteemed panel for keeping you waiting. This is a matter of great interest and great concern and great importance. I think that you are important people and so I appreciate your sufferance because I believe you all believe the same thing about the Administrative Conference.
Last month, as you may recall, our Subcommittee held its first of two oversight hearings regarding the issue of whether the Administrative Conference of the United States should be reauthorized. Supreme Court Justices Antonin Scalia and Stephen Breyer, the two witnesses at last month's hearing, enthusiastically testified about the many benefits and accomplishments of ACUS. The Justices concurred in what may be for them a rare unanimous opinion in their unqualified support for the Conference's reauthorization. This first hearing, at which not one but two esteemed Supreme Court Justices extolled the virtues of ACUS, clearly underscores the importance of the Conference and significance of our efforts to reauthorize it.
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To build on that record, today's hearing is intended to focus in greater detail on exactly how we should go about reauthorizing the Conference. Specifically it is my hope that our witnesses will further explain the need for reauthorizing ACUS and provide guidance with respect to the form in which the Conference should be reauthorized, the priorities that a reauthorized ACUS should consider, and the anticipated amount of funding necessary to reauthorize the Conference.
For those who are not familiar with the work and the accomplishments of the Conference let me briefly explain. Over the course of its 28-year existence the Conference issued more than 200 recommendations, some of which were Government-wide and others that were agency-specific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts included the enactment of the Administrative Dispute Resolution Act in 1990, which established a framework for the use of ADR.
In addition to those accomplishments, ACUS served as the chief implementing agency for the Negotiated Rulemaking Act, the Equal Access to Justice Act, and the Congressional Accountability Act. The Conference also played a key role in the Clinton administration's National Performance Review Project with respect to improving regulatory systems. Throughout its existence, ACUS has served as a valuable resource for Members of Congress, Congressional Committees and various Federal agencies.
Some might ask, how can we justify reestablishing and funding another Government agency, especially in this belt-tightening environment? The answer, at least to me, is obvious. According to the Congressional Research Service, there are growing patterns of evasion among the agencies with respect to notice and comment requirements as evidenced by the increasing number of regulations being successfully challenged in the courts. An informal study by CRS indicates that 51 percent of these rules were struck down by the courts. Needless litigation hurts everyone. It slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers, I might add industry, millions or billions of dollars.
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Another serious area of concern is the lack of a coherent approach among the agencies with respect to emerging issues and technologies. These issues include, for example, how the Government should handle private information it collects from our Nation's citizens and how agencies in this Internet age can promote greater public participation in the regulatory process. There are also concerns about the need to have peer review and to have regulations well grounded in more or less clear science. Our Nation's people and business communities depend upon Federal agencies to promote scientific research and develop science based policies that protect the Nation's health and welfare. Integral to the Federal regulatory process is the need to assess the safety, public health and environmental impact of proposed regulations. Regulations lacking scientific support can present serious safety and health consequences as well as cause the private sector to incur unnecessary and burdensome compliance costs. Businesses suffer with the ability to prioritize their investments, and that is a very serious problem. Restoring the Conference in some form, from my perspective, would provide a cost effective yet highly valuable solution to these problems.
It is against this backdrop that I look forward to hearing from our witnesses today. Now I turn to my colleague, Mr. Watt, the distinguished Ranking Member of the Subcommittee and ask if he has any opening remarks.
[The prepared statement of Mr. Cannon follows:]
PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
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The Subcommittee will please come to order.
Last month, as you will recall, our Subcommittee held the first of two oversight hearings regarding the issue of whether the Administrative Conference of the United States should be reauthorized. Supreme Court Associate Justices Antonin Scalia and Stephen Breyer, the two witnesses at last month's hearing, enthusiastically testified about the many benefits and accomplishments of ACUS. The Justices concurred—in what may be for them a rare unanimous opinion—in their unqualified support for the Conference's reauthorization.
This first hearing—at which not one, but two esteemed Supreme Court Justices extolled the virtues of ACUS—clearly underscores the importance of the Conference and the significance of our efforts to reauthorize it. To build on that record, today's hearing is intended to focus in greater detail on exactly how we should go about reauthorizing the Conference. Specifically, it is my hope that our witnesses will further explicate the need for reauthorizing ACUS and provide guidance with respect to the form in which the Conference should be reauthorized; the priorities that a reauthorized ACUS should consider; and the anticipated amount of funding necessary to reauthorize the Conference.
For those of you who are not familiar with the work and accomplishments of the Conference, let me briefly explain.
Over the course of its 28-year existence, the Conference issued more than 200 recommendations—some of which were government-wide and others that were agency-specific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts included the enactment of the Administrative Dispute Resolution Act in 1990, which established a framework for the use of ADR.
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In addition to these accomplishments, ACUS served as the chief implementing agency for the Negotiated Rulemaking Act, the Equal Access to Justice Act, and the Congressional Accountability Act. The Conference also played a key role in the Clinton Administration's National Performance Review Project with respect to improving regulatory systems. Throughout its existence, ACUS served as a valuable resource for Members of Congress, Congressional Committees, and various Federal agencies.
Some might ask, ''How can we justify reestablishing and funding another governmental agency, especially in this belt-tightening environment?''
The answer—at least to me—is obvious. According to the Congressional Research Service, there are growing patterns of evasion among agencies with respect to notice and comment requirements as evidenced by the increasing number of regulations being successfully challenged in the courts. An informal study by CRS indicates that 51% of these rules were struck down by the courts. Needless litigation hurts everyone—it slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars.
Another serious area of concern is the lack of a coherent approach among the agencies with respect to emerging issues and technologies. These issues include, for example, how the government should handle private information it collects from our nation's citizens and how agencies—in this Internet Age—can promote greater public participation in the regulatory process.
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There are also concerns about the need to have peer review and to have regulations based on sound science. Our nation's people and business communities depend upon Federal agencies to promote scientific research and to develop science-based policies that protect the nation's health and welfare. Integral to the Federal regulatory process is the need to assess the safety, public health, and environmental impact of proposed regulations. Regulations lacking sound scientific support can present serious safety and health consequences as well as cause the private sector to incur unnecessary and burdensome compliance expenditures. Restoring the Conference in some form—from my perspective—would provide a cost-effective, yet highly valuable solution to these problems.
It is against this backdrop that I look forward to hearing from our witnesses today.
Mr. WATT. Thank you, Mr. Chairman, and I thank the Chairman for convening another hearing on this subject, the reauthorization of the Administrative Conference of the United States. If this works, the process that we are following, this will be a classic example of how the legislative process should work, which is to say you start by thinking about whether there is a need for something to be reauthorized or to be approved and you have a series of legislative hearings to document the need that you think exists and to document the arguments against whatever you are proposing and to evaluate how you ought to implement or reauthorize.
We started this process, thanks to the Chairman, with two distinguished members of the United States Supreme Court and both of them were in agreement about the need for the Administrative Conference of the United States, and we are taking this second step in the process with what appears to be an equally distinguished panel of witnesses, and I am looking forward to hearing their testimony. We obviously have our predilections about the need for reauthorizing the Administrative Conference of the United States, but need to hear from people who have dealt with it more close up, more hands on and to justify having such an entity in place and, if there is a need for it, justify how it ought to be reauthorized.
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So I thank the witnesses for being here, and I am looking forward to your testimony, and I am looking at the reporter now who is saying, man, he talks a lot slower than that other guy, which was the reaction that I used to get when I was practicing law. All of the court reporters loved me because I do talk slow enough that they can take down what I am saying.
Mr. CANNON. You are thinking as you are talking, and I was reading and that is probably why. I just try to get through the reading so we can get to the real stuff and ask questions.
Mr. WATT. All right. Well, I yield back. I appreciate you having a hearing and I certainly support the process and the objective.
Mr. CANNON. I thank the gentleman. Without objection, the gentleman's entire statement will be placed in the record. It has been a pleasure to work with the Ranking Member on this issue and on many other issues. He and his staff have worked with us and it has been good to move this process forward. I think it has been a thoughtful process, and I think we are at a point where after this testimony we are able to refine what we project to do and get some legislation moving.
Without objection, all Members may place their statements into the record at this point. Any objection? Hearing none, so ordered.
Without objection, the Chair will be authorized to declare a recess of the Subcommittee today at any point. Hearing no objection, so ordered.
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I ask unanimous consent that Members have 5 legislative days to submit written statements for inclusion in today's hearing record.
In that regard I ask unanimous consent that the record include two letters we received in support of reauthorizing the Conference, both of which were previously distributed to the Subcommittee Members. The first is from Richard Chernick on behalf of the American Bar Association's Section of Dispute Resolution. The other is from Professor Paul Verkuil of the Benjamin N. Cardozo School of Law of Yeshiva University. Professor Verkuil is the Chair-elect of the Association of American Law School's Section on Administrative Law.
[The information referred to follows:]
Cardozo1.eps
Cardozo2.eps
Mr. CANNON. And now I would like to recognize the gentleman from North Carolina for 5 minutes for the purpose of making a statement on the record.
Mr. COBLE. Well, thank you, Mr. Chairman. I will be very brief, Mr. Chairman. I have another meeting I have got to attend, but I want to commend you and Mr. Watt. I think you two have done a good job of steering the Subcommittee on Commercial Administrative Law very adeptly through the sometimes shoals, reefs, and rocks that await you up here. But you all have managed to avoid those.
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As you pointed out, this is a very significant issue and, Mr. Chairman, you have assembled a very distinguished panel, not the least of whom is Mr. Watt's and my fellow Carolinian, Mr. Boyden Gray. But it is good to have all of you here. I apologize, Mr. Chairman, for departing, which is going to be in about 12 or 15 minutes, but I thank you.
Mr. CANNON. Thank you for coming. Mr. Feeney, did you want to make any comments to start.
Mr. FEENEY. Well——
Mr. CANNON. The gentleman is recognized 5 minutes.
Mr. FEENEY. Well, like Mr. Coble, I will have to be leaving early, too, but I have read the testimony of all the witnesses. Appreciate you being here. I am very optimistic, like Mr. Watt is especially, about this meeting. My short time here in Congress leads me to believe that there is an inverse relationship between how much work we get done in Committee and how many live TV cameras and microphones there are, so I am optimistic.
Mr. CANNON. The suggestion being that we do boring and important stuff.
Mr. Chabot, did you want to address the——
Mr. CHABOT. I enjoy boring stuff as much as anybody else does, Mr. Chairman. I am happy to be here this afternoon. But important stuff.
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Mr. CANNON. Thank you.
Mr. WATT. Mr. Chairman, can I ask unanimous consent to submit for the record the testimony of Sally Katzen that has been offered for the record.
Mr. CANNON. Without objection, so ordered.
[The prepared statement of Ms. Katzen follows:]
PREPARED STATEMENT OF SALLY KATZEN
Mr. Chairman and Members of the Subcommittee:
I greatly appreciate the invitation to testify in favor of the reauthorization of the Administrative Conference of the United States (ACUS). For the last several years, I have been teaching undergraduates (at Smith College) and graduate students (most recently at the University of Michigan Law School and at Johns Hopkins University); among the courses I teach are Administrative Law and The Regulatory Process. During the Clinton Administration, I served as the Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (1993–1998), where I was responsible for the development and implementation of the Administration's regulatory policy. Before joining the Clinton Administration, I was a partner in the Washington DC law firm of Wilmer Cutler and Pickering, where I specialized in administrative law. I also served as the Chair of the American Bar Association Section on Administrative Law and Regulatory Practice (1988–89).
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Most relevant in establishing my credentials on the subject of today's hearing is the extensive experience I have had with ACUS. I was first appointed a Public Member in 1988 while I was in private practice. I served on several of the ACUS committees, eventually chairing the Committee on Judicial Review. I was therefore actively involved in the preparation and presentation of various reports and recommendations of ACUS in the late 80's and early 90's. In l994, President Clinton appointed me one of the five government members of the Council (the governing board of ACUS) and designated me as the Vice Chairman. I served in that capacity (and for a time as Acting Chairman) until ACUS was closed.
In fact, I was privileged to testify before this Committee on April 21, 1994, in support of reauthorization of ACUS. [A copy of that testimony, which was reprinted in 8 Admin. L.J. Am. U. 649 (1994), is attached.] Today, I again urge your favorable consideration to authorizing ACUS as an independent agency to study administrative law issues and make recommendations to improve the efficiency, adequacy and fairness of the federal government's administrative procedures (paraphrasing the 1964 Administrative Conference Act).
Others have testified about the significant substantive contributions made by ACUS, citing specific studies or recommendations or advice to the Congress, the Executive Branch and even the Judiciary. Others have made the point that the structure and composition of ACUS enabled a relatively modest amount of taxpayer funding (less than $3 million annual appropriations) to be leveraged by the far greater contributions in kind by practicing lawyers and academics. And you have heard that several of the recommendations of ACUS actually saved the federal government significant amounts of money by increasing the efficiency of administrative processes without decreasing fairness for the participants. I do not want to repeat what others (including my earlier testimony) have said.
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The point I want to emphasize is that my (and others') judgment on the value of ACUS have only strengthened with the passing of time. It is often said that you do not appreciate what you have until you no longer have it. That, I believe, sums up the past decade for those of us who work in the field of administrative law.
After ACUS closed and while I was still in government, there were several occasions when I and other senior government policy officials would have greatly benefited from having ACUS opine on pending developments—from how to conduct rulemaking proceedings in an electronic age to how to implement a new program in the most efficient, effective and equitable way. We knew from past experience that the ideas being considered, while meritorious, might well be improved as the result of an objective, non-partisan appraisal/critique. I cannot imagine that those in the current Administration would have any different view. In fact, at a conference held recently at American University on electronic rulemaking, several participants in the session on ''next steps'' (some with government experience and others currently in government) called for resurrecting ACUS to provide the kind of broad-based public and private input that is essential for good decision making in this area.
There are two aspects of ACUS that I think are sorely missing. First, on matters of substance, ACUS provided an invaluable institutional memory. Invariably, administrations change, and with each new administration there are some bright new ideas about how to conduct or carry out administrative processes. Some of these ideas are fresh and productive and welcome. Some, however, may sound good or appear simple at first look, but they have in fact been tried before and failed or been seriously flawed for one reason or another. What ACUS provided was a forum for those who worked and wrote in the field to discuss, evaluate, and provide constructive suggestions based on real life experience. Now when senior government officials are presented with a proposal to address or resolve a particular problem in administrative practice, they can—and presumably do—seek out the views of some in the academy, individual private practitioners, or their colleagues in other federal agencies (if they know or can find out that these officials have dealt with this or a similar issue). But there is no central repository of expertise and experience that can provide a collective view—incorporating the considered judgment of those in the public and private sectors, those in academics and those in public administration, and importantly, both Democrats and Republicans. That was the beauty, or genius, of ACUS—for its very small staff was able to reach out to almost 100 of the most knowledgeable and experienced people in the field and tap the accumulated wisdom of the profession for the public good. The absence of ACUS is a tremendous loss to good government.
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The second aspect follows from a point made above. As I said, the members of ACUS came from, and brought with them, varied perspectives. This diversity of views was enhanced by the long-standing and time-honored tradition of appointing the public members—those from the private sector—across party and philosophical lines. And the bi-partisan and collegial nature of ACUS was maintained not only in the selection of members, but also in the operating committees and the plenary sessions. Simply stated, ACUS was one place where Democrats and Republicans worked together. We might have disagreed (strenuously) on the substance of the proposal—should there be a government program in this area or not—but if, in the wisdom of Congress, there was to be such a program, we could all agree that it should be conducted fairly and efficiently. It is significant, I believe, that both Justices Scalia and Breyer testified in favor of reauthorizing ACUS. Today, Boyden Gray and I both speak as stalwart supporters of ACUS. With divided government and the increased partisanship that has characterized the last several decades in Washington, there are very few such bi-partisan institutions—I should probably say non-partisan institutions—where people with vastly different political views can and do see eye to eye on administrative processes. That too was the beauty, or genius, of ACUS—for those with differing positions to be heard and be reconciled for the public good, and that too has been sorely missed.
I thank this Subcommittee for reexamining this issue and for favorably considering the reauthorization of ACUS.
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Mr. CANNON. I would now like to introduce our witnesses for today's hearing.
Our first witness is C. Boyden Gray. Mr. Gray is a partner in the newly reconstituted firm of Wilmer Cutler Pickering Hale and Dorr. His practice focuses on a broad range of regulatory issues with emphasis on environmental matters, including those related to biotechnology, clean air, trade and the management of risk.
Mr. Gray received his undergraduate degree from Harvard University and his law degree from the University of North Carolina. After serving as a law clerk for Chief Justice Earl Warren of the United States Supreme Court, Mr. Gray joined the predecessor of his current law firm. In 1981, he served as Legal Counsel for Vice President George Bush. He also served as Counsel for the Presidential Task Force on Regulatory Relief. Thereafter, Mr. Gray was Counsel to President Bush from 1989 to 1993. Mr. Gray appears today on behalf of the American Bar Association.
Joining Mr. Gray is Professor Gary Edles. Professor Edles is a Fellow in Administrative Law at American University Washington College of Law. He is also a visiting professor at the University of Hull Law School in England. In addition to an extensive academic career, Professor Edles has had a wide-ranging legal career as a senior civil servant, specializing in Government regulation and the administrative process. Of particular interest, he served as General Counsel of ACUS from 1987 to 1995.
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Professor Edles received his law degree from New York University and his Master of Laws and Doctor of Juridical Sciences Degrees from George Washington University Law School.
Our next witness is Professor Sallyanne Payton. Professor Payton teaches at the University of Michigan Law School. During her professional career she has worked in the public and private sectors. In the 1970's, for example, she was a Staff Assistant to the President for the White House Domestic Council. She later became Chief Counsel for the Urban Mass Transportation Administration of the U.S. Department of Transportation. Over the course of nearly 20 years, Professor Payton served as either a Public Member or Senior Fellow at ACUS.
Professor Payton received both her undergraduate and law degrees from Stanford University. She appears today on behalf of the Executive Organization and Management Standing Panel of the National Academy of Public Administration.
Our final witness is Professor Philip Harter. I understand that you interrupted your vacation in Vermont to attend today's hearing, for which you are to be commended. We thank you. Professor Harter is the Earl F. Nelson Professor of Law At the Center for the Study of Dispute Resolution at the University of Missouri-Columbia School of Law. Over the course of his 35-year career in academia and the private sector, Professor Harter worked closely with ACUS in various capacities. While the Conference's senior staff attorney, he created a program on regulatory reform. As a consultant to ACUS, he developed the concept of negotiated rulemaking and authored a series of articles on the use of dispute resolution techniques by the Federal Government.
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Professor Harter received his undergraduate degree from Kenyon College and his law degree from the University of Michigan.
I extend to each of you my warm regards and appreciation for your willingness to participate in today's hearing. In light of the fact that your written statements will be included in the hearing record, I would request that you limit your oral remarks to 5 minutes accordingly. Please feel free to summarize and highlight the salient points of your testimony.
You will note that we have a lighting system before you that starts with a green light. After 4 minutes it turns to a yellow light and then 5 minutes it turns to a red light. My habit is to tap the gavel at 5 minutes. We would appreciate if you finish up your thoughts within more or less that time frame. We don't like to cut people off in their thinking and so we are not strict on this point, but it works better especially—well, I am not sure how many people we have here to question but I have some questions of the witnesses. We will go through those and you will have an opportunity to flesh out your thinking thereafter. After the witnesses have presented their remarks, the Subcommittee Members in the order of the time of their arrival will be permitted to ask questions of the witnesses, also subject to the 5-minute rule.
That said, Mr. Gray, would you precede with your testimony?
STATEMENT OF C. BOYDEN GRAY, ESQ., WILMER CUTLER PICKERING HALE AND DORR LLP, ON BEHALF OF THE AMERICAN BAR ASSOCIATION
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Mr. GRAY. Mr. Chairman, thank you very much for inviting us and inviting me, and I testified before, I think, this very same Subcommittee a couple of years ago against the termination of ACUS. So I am very honored to be back to help support its reauthorization.
I just want to make a couple of observations in addition to what my prepared text says, which is the official position of the ABA. The U.S. administrative law system I believe is the best in the world. It is the most transparent, the fairest and the most economically productive, especially when you look at it in comparison to the emerging EU, European Union, system, which is far more bureaucratic, biased against innovation, opaque, and encouraging support for incumbents rather than for a level playing field and equal opportunity for all competitors. I think ACUS deserves some of the credit for this state of affairs.
The Administrative Procedure Act is unrecognizable in the sense of its original language. It has been largely rewritten, not in derogation of the congressional intent, but to flesh out what the words mean, ACUS was an important part of this evolving growth and we have a very, very sophisticated administrative system as a result. There are now, I think, some strains in the system.
OIRA, the nerve center at OMB, the Office of Information and Regulatory Affairs, often provoked a polarized political response notwithstanding the fact that I believe Dr. Graham has done a great job, especially with his innovations of the so-called prompt letter, which is a guide to agencies to do something if to do so would produce a result where its benefits greatly exceed cost. He has been very, very evenhanded in his administration of that office, I believe, but it would be an enormous help, I think, to the Government as a whole, if he could have a forum for ventilation of arguments for and against his administration of that office.
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There are some other issues that have come up during his tenure, issues involving data quality and related issues involving peer review. I think that these three issues would be very useful subjects of study by ACUS if it were to be reauthorized. And I would add to this that the notion of looking at the European Union and comparative study of its procedures. The Administrative Law Section of the ABA has embarked now on such a study. I am not sure it wouldn't be better if this study could be picked up by a neutral, obviously neutral Government entity, rather than have the private sector do it with questions about where the funding came from and what the funding influence is. I am not sure this transfer could be made, but to do a comparison I think is something that hopefully ACUS would be in a position, if it were reauthorized, to do.
Many of the problems that—and they are not serious problems, but they are serious enough to warrant the reauthorization of this entity. Many of the problems result, if you step back, from a lack of dialogue and nonpartisanship or bipartisanship which has characterized the development of the administrative system in this country. We need to reinject some bipartisanship into the administrative process. That was the genius of ACUS.
You asked how it should be reauthorized, the form. I am not sure I understand exactly the question, but I am not sure I would make it any different than it was before. There was a town hall air to much of what it did, a little boisterous, a little out of hand sometimes, people shouting at each other, but it was all in an effort to maintain a dialogue in the public meetings, and it was enormously successful. I should point out that the history of substantive administrative law has been one of bipartisanship, often forgotten.
We perhaps think today, and we shouldn't do this but we probably do, of deregulation as a Republican idea to be opposed by Democrats, something that Reagan started, to be frustrated by Democratic Presidents. This is, I think, an erroneous view. The major deregulation that we have was started really by Senator Kennedy and then Professor Breyer, doing transportation deregulation. It was picked up and carried by President Carter with Stu Eisenstat taking the lead as Domestic Policy Adviser. Then of course it was picked up by Reagan in a more intensive way. But there is a direct line of antecedence going all the way back, actually to President Nixon, I think, and it is shared by all Democratic Presidents, and I think it would be a mistake to lose this sense of shared bipartisanship which has made our system the envy of the world. And I do think that ACUS would be very critical to getting us back to where we were some years ago.
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Thank you, Mr. Chairman.
[The prepared statement of Mr. Gray follows:]
PREPARED STATEMENT OF C. BOYDEN GRAY
I am pleased to be asked to testify here on behalf of the Administrative Law and Regulatory Practice Section of the American Bar Association, and the ABA itself, on the question of the reauthorization of the Administrative Conference of the United States (''ACUS''). The views expressed in this testimony are similar to the letter previously sent to this Subcommittee by Professor William Funk, Chairman of the Administrative Law Section. I am myself a former member of the Conference, as well as a former Chair of the Administrative Law Section of the ABA, and I testified before this Committee on May 11, 1995 to oppose the termination of ACUS (testimony attached).
As you know, the Administrative Conference was established in 1964 as a permanent body to serve as the federal government's in-house advisor on, and coordinator of, administrative procedural reform. It enjoyed bipartisan support for over 25 years and advised all three branches of government before being terminated in 1996.
Through the years, the Conference was a valuable resource providing information on the efficiency, adequacy and fairness of the administrative procedures used by administrative agencies in carrying out their programs. This was a continuing responsibility and a continuing need, a need that has not ceased to exist.
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The Conference's work in some cases resulted in bipartisan legislation to improve the administrative process. For example, both the Negotiated Rulemaking Act of 1990 and the Administrative Dispute Resolution Act were the product of the Conference's work, both in terms of the studies and reports that underlay the justification for these two laws and also in terms of the interested persons and agencies brought together to support the law.
In other cases, the Conference's work made legislation unnecessary. For example, early studies indicated that the exemption from notice and comment in the original Administrative Procedure Act for rulemakings involving public property, grants, contracts, loans, and benefits was no longer necessary or desirable. As a result of the Conference's work, virtually every agency voluntarily subjected itself to notice-and-comment rulemaking when dealing with these subjects, improving the transparency and acceptability of government rules without the need for legislative amendment.
The hallmark of the Conference's work was its ability to provide expert and non-partisan advice to the three branches of government. Drawing on the large number of volunteer public members of the Conference, as well as representatives from a wide spectrum of agencies, the Conference fostered a conversation among all interested persons and agencies. Utilizing academics for empirical research, which was reviewed first by subject matter committees staffed by members of the Conference and then by the full Conference, the Conference was able to provide a factual predicate for improvements in the administrative process that were not identified as ideologically or partisan-based proposals.
I stress the fact that over a quarter century the Administrative Conference of the United States maintained a reputation for non-partisan, expert evaluation of administrative processes and recommendations for improvements to those processes. It had no power but the power to persuade, and no political constituency other than those interested in improving administrative government.
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Not only was the Conference a source of expert and nonpartisan advice, the Conference played an important facilitative role for agencies in implementing changes or carrying out recommendations. Thus, a number of statutes, including the Government in the Sunshine Act and the Equal Access to Justice Act, specified that the Conference work with agencies in adopting the agencies' initial regulations. More recently, the Conference worked tirelessly to help agencies understand and utilize the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. Today, adapting administrative processes to make best use of the Internet is a hot topic, but one for which there is no central organization to study different techniques, assess them, and then facilitate the implementation of those that are best.
It is a testament to the Conference's unique position that today persons of such differing judicial philosophies as Justices Scalia and Breyer can rally behind the re-creation of the Conference. Nor is it hard to find many others from across the political spectrum who will similarly commend the re-creation of the Conference to your subcommittee. Past chairs of the Conference, such as Professors Marshall Breger and Robert Anthony and Judge Loren Smith from one side of the aisle, can join hands with lawyer Sally Katzen and administrative judge Thomasina Rogers on the other side.
The Conference proved itself effective at promoting efficiency in government for over 25 years. The American Bar Association has long supported the Conference and the role it played in advancing administrative procedural reform. We urge you to support legislation that would reauthorize the Conference and provide it with funds that are sufficient to permit it to continue its important mission.
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You have asked for comments on the form in which the reauthorization should take place, and for the regulatory reform priorities a reauthorized Conference should examine. I see nothing obvious to change in the way the Conference worked before; sometimes it behaved like a town meeting, but that was, and hopefully will again be, part of its success as a non-partisan venue. As for items to study, we would suggest some empirical research on the innovation of the OMB ''prompt'' letter, matters relating to data quality and peer review issues.
ATTACHMENT
Mr. CANNON. Thank you, Mr. Gray. You have packed an enormous amount of ideas into 5 minutes. I want to go back and explore some of those. Let me just point out here in conjunction with what Mr. Watt said and what I would also say. Some of the most important issues we have before us today are some of the things that we believe will make a difference, are absolutely not partisan and have been kept out of the partisan environment. They ought to be developed in a nonpartisan environment like ACUS so that we can work on some of those very important issues.
Appreciate your testimony. Mr. Edles.
STATEMENT OF PROFESSOR GARY J. EDLES, FELLOW IN ADMINISTRATIVE LAW, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW AND GENERAL COUNSEL, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (1987–1995)
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Mr. EDLES. Mr. Chairman and Members of the Subcommittee, I am truly delighted to be here this afternoon to participate in these hearings that I do hope will lead to the reauthorization and re-creation of the Administrative Conference. I served in both Republican and Democratic Administrations at ACUS, and I thoroughly endorse the thoughtful comments offered by Justice Scalia and Justice Breyer last month as to the need to reestablish ACUS at this point in time. But it is certainly reasonable to ask, it seems to me, why there is a need for ACUS nearly a decade after it was abolished.
The simple answer I think is that new regulatory issues have arisen in the past decade so that the type of analytical work that ACUS once did again needs to be done, and there really isn't any other institution capable of taking on the task in quite the same way. So even if one believes that ACUS had to some extent completed its earlier mission by 1995, it is certainly time to start it up again. Other individuals or institutions, law professors, experts in public administration, bar associations have to some degree stepped into the vacuum that was created by ACUS's demise. But those individuals or groups rarely have the type of resources or the inclination to take on day in and day out the numerous and various issues that ACUS did, to see projects through from a recognition of the problem to its meticulous examination to the design of a solution and eventually its implementation.
I should also add on a personal note that judging from the voice mails and e-mails that I get in my American University office from Government employees even to this day, there is obviously still a need for the type of institutional memory and expertise that ACUS once provided.
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I don't have the precise agenda for an ACUS of the 21st century, but I do know that much has changed in the 9 years since ACUS was abolished. The era of electronic communication and its role in Government decision making, for example, was just beginning in 1995, and it is now in full flower. Problems affecting immigration procedures are surely different today in light of our country's security needs occasioned by 9/11. There are certainly new questions concerning the organization of the Federal Government. What's the proper role for public-private partnerships, self-regulatory organizations, Government contractors for example? Are there problems of governmental organization or interagency coordination that impede our country's ability to compete in world markets. And, Mr. Chairman, you mentioned a number of items that I think would also warrant ACUS style analysis.
I think that ACUS's historic structure, which was a mix of Government officials, leading academics, lawyers from the private and public interest bars, plus a range of non-lawyer experts such as public administrators, remains the best blend of talent to accomplish ACUS's mission. The key ingredient for any revitalization, though, is it must be a genuinely nonpartisan and independent institution that is both objective and impartial and seen as objective and impartial.
ACUS's operation and budget were tiny in absolute terms when it comes to Government entities. It had 18 employees and $1.8 million budget when it was eliminated in 1995. Perhaps more important, it was extremely small relative to its mission. It was the only Federal agency with exclusive responsibility for improving administrative justice and Federal programs that at the time affected about $500 million in gross domestic product and involved agencies and departments that adjudicated more cases than the Federal courts. In fact, the money saved by both the Government and the private sector by ACUS's seminal work in alternative dispute resolution alone far exceeds its annual budget. Those are, I think, ACUS's real value for money.
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My prepared statement offered some modest organizational and technical suggestions regarding the revitalization of ACUS. But more important than any precise modifications that Congress might have, being desirable modifications over the past 9 years, I believe that there has to be a political recognition that it is worth spending a tiny amount of taxpayers' money to obtain genuinely independent, nonpartisan, expert analysis of issues bearing on the governmental process with a view toward improving the fairness and efficiency of that process.
As Justice Breyer pointed out last month, other countries with significant administrative systems—Britain, France, Australia, for example—have permanent oversight bodies. In fact, the Canadian Parliament, which abolished its advisory review body in 1992 during a period of retrenchment and budget cutting that was not terribly different from what went on in this country, quickly realized that it had made a mistake and reestablished its commission only 4 years later. Our citizens, it seems to me, Mr. Chairman, deserve no less.
I want to applaud the work of this Committee and staff in holding these hearings, and I hope they will be the first step leading to the reauthorization and funding of the Administrative Conference. I will try as best I can to answer any questions that you may have.
[The prepared statement of Mr. Edles follows:]
PREPARED STATEMENT OF GARY J. EDLES
Mr. Chairman, members of the subcommittee. I want to applaud the subcommittee's decision to hold theses hearings and I hope that they will lead to the long-overdue reauthorization and funding of the Administrative Conference of the United States, or ACUS. I served as ACUS' General Counsel from 1987 to 1995, and urged its re-creation in a 1998 law review article, The Continuing Need for an Administrative Conference, 50 Admin. L. Rev. 101 (1998). I thoroughly endorse the thoughtful comments offered at the subcommittee's hearing last month by Justices Scalia and Breyer, and the observations of the American Bar Association, setting out the reasons for—indeed, the need for—ACUS' re-establishment at this time.
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THE NEED FOR AN ADMINISTRATIVE CONFERENCE
I strongly believe there is a need for the reauthorization of an Administrative Conference and that ACUS is ''very good value for money.'' Despite the presence of a written Constitution and a government-wide procedural statute (the APA), the federal administrative process, by design and evolution, is characterized by a considerable degree of procedural flexibility and agency discretion. Given that flexibility and discretion, some form of independent oversight entity is needed to help ensure that the process is effective, accountable, and, perhaps most important, fair to our citizens. ACUS successfully played a key oversight role in the past and I believe such an institution is still needed.
As a practical matter, there are no other entities that can play the unique role that ACUS played. The courts are ill suited to perform a meaningful role as supervisor of the details of agency operations. Very few agency actions, even those that significantly affect members of the public, turn into litigated cases, in part because they are not amenable to judicial remedy or the average citizen simply can't afford the cost of litigation. So, many agency procedures and practices don't find their way into the courts. And the best a court can do in any event is to correct a problem in the case before it. The courts are simply not set up to be pro-active in proposing systematic change.
Likewise, Congress cannot be expected to oversee the minutiae of agency operations and procedures. Congressional oversight of administrative agencies has always been episodic. Congress, quite frankly, has many more fundamental issues on its plate. For example, Title II of Public Law 104–121, the Small Business Regulatory Enforcement Fairness Act of 1996, gave Congress an opportunity to review agency regulations before they became effective and enact legislation to prevent them from going into effect. But the provision is limited to rulemaking initiatives, which make up only a portion of overall agency activity. Moreover, agencies place several thousand regulatory actions in the Federal Register annually, but Congress has historically managed to enact only 150–200 bills each year. As a consequence, to my knowledge, Congress has used its rulemaking review power only once since the statute was enacted. Congess, in short, rarely involves itself in the type of procedural particulars that ACUS regularly examined.
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It is doubtful that centralized review by the President, or even his senior deputies, can effectively oversee the finer points of the regulatory process. Although presidential review is theoretically possible, my colleague, Professor Thomas Sargentich, has suggested several factors that necessarily limit the President's power as a practical matter: the multitude of issues flowing through agencies daily, the severely limited resources of executive oversight, and the variety of control relationships that exist in the administrative system.
Nor can agencies be expected to devote their time and energy to critical self-examination. In an era when resources are scarce and must be channeled into accomplishing the numerous tasks assigned to them by Congress, agencies can devote very little time to reflection unless pressed to do so by outside political pressure.
Individual scholars or ad hoc advisory groups can study agency practices and procedures to some degree. Indeed, the Section of Administrative Law and Regulatory Practice of the American Bar Association has done an excellent job of picking up some of the slack after ACUS was abolished. But the details of day-to-day administrative procedure are often arcane and typically agency-specific, so they rarely attract the attention of academic scholars, who prefer to devote their time and energy to doctrinal or policy issues that have a larger audience. Moreover, neither academic researchers nor ad hoc advisory groups have the time or incentive to pursue research or recommendations to the implementation phase, particularly where such phase can last a decade or more.
A permanent, independent body such as ACUS also melds the expertise and perspectives of the government agencies, the private sector, including, importantly, the practicing bar, and members of the judiciary and the academic community. The participation of senior government officials—especially career civil servants—brings a unique form of expertise and experience. Agency officials are typically thoroughly familiar with the intimate workings of their own agencies. That expertise is essential to effective procedural reform. But agency officials can also have a stake in existing procedures that they administer or may even have created. And I have always found it surprising how unfamiliar agency officials often are with the experience of sister agencies. So sensible oversight requires the bringing together of expertise from numerous agencies across the government.
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The participation of non-government members is crucial. It helps ensure that recommendations reflect the problems and perspectives of those who must actually deal with government and have experienced the frustration of trying to work their way through the bureaucracy or perceive government procedures as unfair. Judges lend their perspectives as generalist experts in fair procedure and reviewers who examine administrative action when it is challenged in court. Participation by members of the academic community helps guarantee that studies are thorough and doctrinal elements are not ignored.
Finally, a permanent institution allows a career staff to develop expertise in the areas of administrative law and government organization and process and devote time and resources to implementing recommendations. Judging from the number of telephone calls or e-mails I received at my American University office after ACUS was abolished, the need for some form of institutional memory is critical.
Over 40 years ago, federal Court of Appeals Judge E. Barrett Prettyman, reporting on behalf of the temporary Administrative Conferences created by President Kennedy, summarized ACUS' value as follows:
The heavy pressures of Government to discharge immediate responsibilities may at times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity, and the demands of the daily job may lessen the will to achieve change.
The committees of Congress, suitably concerned as they are with matters of substantive policy, can only sporadically occupy themselves with the details of methodological and organizational problems. . . . Nor do we think that hope of major accomplishment lies in occasional studies by groups external to the Government. . . . The current need is for continuous attention to somewhat technical problems, rather than for public enlightenment concerning a few dark areas that cry for dramatic reforms. A discontinuous commission . . . is unlikely to have great impact upon the day-to-day functioning of the Federal agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy (Dec. 17, 1962), Legislative History of ACUS (on file, ACUS Collection, American University Washington College of Law Library),
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Those reasons help explain why other countries with significant administrative systems have permanent oversight bodies. For example, Britain has its Council of Tribunals that continuously monitors the work of that country's numerous tribunals and makes recommendations for procedural improvement. Much like ACUS, its detailed work is its greatest strength. The Australian Administrative Review Council has responsibility for giving advice on the workings of the administrative review system in that country. Canada too has a Law Commission that advises its Parliament on how to improve and modernize Canadian law. In fact, in 1992, a new Canadian government introduced a budget package designed to reduce both the federal budget and the deficit. It proposed abolition, privatization or consolidation of 46 separate agencies or programs. The Law Commission of Canada was one of the agencies abolished. The Commission was smaller than ACUS, but its jurisdiction was far broader, extending to ''the statutes and other laws comprising the laws of Canada.'' It employed the same general methodology as ACUS—systematic review and oversight of Canadian legal matters and the submission of recommendations for improvement to Parliament and the agencies and departments of government. The government quickly realized that abolishing the Commission had been ''penny-wise and pound foolish'' and the Canadian Parliament re-established the Commission, in a somewhat modified form, only 4 years later.
NEED FOR INDEPENDENCE
The need for a genuinely nonpartisan and independent advisory body has been recognized throughout ACUS' history. A Republican President, Dwight Eisenhower, established the first Administrative Conference on a temporary basis in 1953. A Democratic President, John Kennedy, created a second temporary Conference in 1961. Apart from their numerous proposals for specific improvements in agency procedures, both temporary groups strongly endorsed the need for a permanent institution. Congress agreed, and created what was designed to be a permanent institution in 1964 with passage of the Administrative Conference Act.
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A separate, independent institution serves to maintain both objectivity and the appearance of objectivity. From its earliest days, ACUS had a bylaw providing that each member participated ''according to his own views and not necessarily as a representative of any agency or other group or organization.'' It is doubtful, for example, that federal judges would have, or could have, participated in an institution that was not genuinely independent of an incumbent political administration. So ACUS would have lost the valuable insights of numerous federal judges, such as Justice Breyer, if it were seen as closely allied to the President, irrespective of which party was in power. Although the ACUS Chairman and staff were careful not to lock horns unnecessarily with an incumbent administration, ACUS' recommendations at times parted company with the official view of the President or particular departments or agencies of government. I think that committees of Congress especially appreciated that when ACUS provided its advice, it was not doing so simply as a spokesperson for a current administration.
As part of its independence, Congress needs to ensure that ACUS has some funds for independent research. Over the years, ACUS affected major alterations in the federal administrative process. It recognized the need to develop fundamental changes in the process of the entire government. But it also examined the need for improvements in the organization and procedures of individual agencies. Its studies almost always focused on empirical inquiry, although they did not ignore doctrinal elements. During the period when I served as ACUS' General Counsel, from 1987 to 1995, agency-specific studies were conducted at the request of several agencies, often with the financial support of the requesting agency. Congress encouraged this approach in an effort to make ACUS more self-sustaining. Although ACUS was always receptive to conducting studies on behalf of agencies interested in self-examination, a number of us were concerned about excessive reliance on funds from other agencies to sponsor projects. I would emphasize that no agency was ever able to influence ACUS' recommendations despite having requested or underwritten a study. Still, I believe that excessive reliance on agency funds can undermine public confidence in the objectivity of ACUS' research. Equally important, too much reliance on agency funding introduces instability in the research program because areas that need examination may not get it for lack of outside funding and a constant flow of funds from other agencies can never be assured. In my judgment, some independent research budget is essential.
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STRUCTURE AND MISSION FOR A REAUTHORIZED ACUS
Any revitalized ACUS should remain essentially advisory. From time to time during ACUS' history, elements within ACUS or its supporters urged that it be given authority to compel, rather than merely recommend, action by agencies. In my view, that's a bad idea. Such expansion of its authority will compromise ACUS' ability to achieve actual reform. Much of its success stemmed from its ability to enlist an agency's support even when that agency was the subject of study. Numerous agencies actively solicited ACUS' help. And, in most cases, agencies adopted ACUS' recommendations. Any change from advisory to mandatory powers would alter ACUS' relationship with its member agencies from that of an impartial adviser to that of a policeman or potential adversary and compromise its ultimate ability to effect change. Nonetheless, I do believe that ACUS should undertake to bring to the attention of Congress or the President whether, and to what extent, its recommendations have been adopted. Providing Congress and the President with impartial advice, including a status report on agency implementation of ACUS recommendations, is not inconsistent with ACUS' advisory mission.
Given the changing complexion of regulatory problems, and the recognized public dissatisfaction with government regulation, but the apparent lack of consensus on how to reform it, I think a revitalized ACUS should examine whether there are institutional elements that bear on regulatory failure. During my tenure, ACUS had economists among its members, such as OMB Director James Miller, and I think a revitalized ACUS would benefit from a membership that also included public administrators.
A revived ACUS can be smaller than the 101-member Assembly. Such a large group provided broad representation of interests but, at times, frustrated efficient operation. As with any organization, not all members were equally active. Senior political officials from the government, in particular, often had schedule conflicts that compromised their participation. These scheduling conflicts also intermittently led to quorum problems. So the work typically fell to a smaller group of active members. As long as the balance between government and private interests is retained, and all cabinet departments and a fair representation of other agencies are included, fewer than 101 individuals could accomplish ACUS' statutory mission.
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Reform of entrenched administrative practices and attacking bureaucratic inertia takes time and perseverance. One of ACUS' strengths was its ability to see its ideas through from concept, to design, to implementation. So, in reauthorizing ACUS, Congress needs to ensure an ongoing role for a permanent, career staff.
However, the permanent staff might be a bit smaller than the 24 employees that made up the Office of the Chairman during the high water mark of ACUS' activities. While a small corps of permanent employees is essential, there is no reason why employees temporarily assigned from other agencies could not supplement the permanent staff. The existing statute permits this arrangement and, over the years, ACUS had an active ''visiting executive'' program that allowed a number of highly talented government employees to join the ACUS staff for temporary periods while remaining on their home agency's payroll. A new ACUS could also augment its operations without an additional outlay of funds through an affiliation with a law school or school of public administration, whose students and faculty could assist in, or supplement, the conduct of research, the coordination of peer review for oversight of projects, and the drafting and implementation of recommendations.
ACUS' budget was tiny by governmental standards—only $1.8 million when it was eliminated in 1995. Even ACUS' critics acknowledged that its abolition had no meaningful effect on the overall federal budget. Perhaps more importantly, ACUS' budget was also small relative to its mission—it was the only agency with exclusive responsibility for improving administrative justice in federal programs that, at the time, affected about $500 billion of the gross domestic product and involved government departments and agencies that adjudicated more cases that the federal courts. Indeed, the amount of money saved by both the government and the private sector from ACUS' seminal work in the area of alternative dispute resolution, standing alone, far exceeded its annual budget. Given inflation since 1995, I think that ACUS could operate successfully at the outset on a modest budget in the $2–3 million range.
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In summary, though, I think that the precise size and organizational structure of a new ACUS is much less significant than the political recognition that some entity needs to be available to police the inner recesses of the administrative process, and that ACUS is the best available option. It provides, as Justice Scalia pointed out, ''a unique combination of scholarship and practical know-how, of private-sector insights and career-government expertise.'' Its essential purpose today would be the same as when it was originally created—to identify the causes of government inefficiency, ineffectiveness, delay and unfairness, recommend ways to change things, and pursue those recommendations to fruition.
EMOLUMENTS CLAUSE ISSUE
As part of the reauthorization process, I urge the committee to clarify the uncertainty that exists over a rather technical issue, namely the applicability of the Emoluments Clause of the U.S. Constitution to non-government members of ACUS. The uncertainty arises because of a 1993 opinion by the Office of Legal Counsel, Department of Justice (OLC), and ACUS' inability to have the matter resolved before it went out of business in 1995. Congress should make clear that, in its view, ACUS' members from outside the federal government who serve part-time, are unpaid for their services, and are explicitly required by the statute to be chosen for their expertise do not, simply because of such service, hold an ''Office of Profit or Trust'' within the meaning of the Emoluments Clause. Rather, they should be treated like members of any other federal advisory committee. Absent resolution of the issue by Congress, the status of ACUS' non-government members will remain in doubt and the ability of a revitalized ACUS to attract the most distinguished individuals from the private sector will be seriously compromised.
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As you may know, the Emoluments Clause provides that ''no Person holding any Office of Profit or Trust . . . shall, without the Consent of the Congress, accept . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.'' U.S. Const., art. I §9 cl. 8. The Constitutional Convention included the Clause in order to shield foreign ministers and other officers of the United States government from undue influence and corruption by foreign governments. However, in a 1991 opinion, OLC substantially expanded the historic understanding of the Clause when it concluded that even ''[f]ederal advisory committee members hold offices of profit or trust within the meaning of the Emoluments Clause.'' Applicability of 18 U.S.C. §219 to Members of Federal Advisory Committees, 15 Op. O.L.C. 65 (1991). The 1991 opinion, although presumably affecting a thousand or more advisory committees at scores of federal agencies, went essentially unnoticed at the time.
On October 28, 1993, OLC issued a further opinion addressing two rather esoteric Emoluments Clause questions specifically affecting ACUS members. First, it concluded that ACUS' academic members, such as law professors, are prohibited by the Emoluments Clause from serving on ACUS if, absent Congress' consent, they accept any payment from a commercial entity owned or controlled by a foreign government, including universities or law schools. That ruling had the effect of preventing any academic from serving as an ACUS member if he or she at any time undertook any employment relationship with a foreign government-owned academic institution—even a one-semester visiting professorship or a single compensated lecture. Second, OLC determined that an ''Emolument'' within the meaning of the Clause included any distribution of partnership shares that includes some proportionate share of the revenues generated from the firm's foreign government clients even though the ACUS members themselves did not personally represent any foreign clients and had no dealings with them. Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114 (1993). What we discovered at the time was that, at most law firms, it is impossible to segregate partnership earnings to exclude from one partner's share some amount—often miniscule—associated with another partner's foreign government clients. So, absent Congress' consent, lawyers in large law firms whose partners had foreign clients could no longer serve on any advisory committee. Importantly, in reaching its decision, OLC did not reconsider its fundamental 1991 view that advisory committee members, such as non-government ACUS members, occupy an ''Office of . . . Trust'' within the meaning of the Emoluments Clause. Some of ACUS' members resigned in light of OLC's decision.
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The matter has been partially—but, unfortunately, not fully—resolved in the years since 1993 because OLC has retreated from its original determination. Immediately on the heels of its October, 1993 ACUS opinion, OLC, at the behest of the Department of State, reconsidered and revised its underlying view regarding the applicability of the Emoluments Clause to unpaid members of advisory committees. On March 1, 1994, in an unpublished letter to State Department Legal Adviser Conrad Harper from OLC Assistant Attorney General Walter Dellinger, subsequently cited in Applicability of 18 U.S.C. §219 to Representative Members of Federal Advisory Committees, 1999 OLC LEXIS 11 (1999), OLC determined that ''not every member of an advisory committee necessarily occupies an 'Office of Profit or Trust' under the [Emoluments] Clause.'' Later in 1994, OLC modified its view regarding advisory committee members from the academic community. It determined that while foreign public institutions, such as universities, were presumptively instrumentalities of a foreign state for Emoluments Clause purposes, individuals did not come within the Emoluments Clause if the foreign academic institutions with which they had a relationship are independent of the foreign government when making employment decisions. See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13 (1994). In 1996, OLC publicly rejected what it now characterized as its previous ''sweeping and unqualified view'' that federal advisory committee members hold offices of profit or trust and were thereby subject to the Emoluments Clause. It went on to conclude that members of the State Department's Advisory Committee on International Economic Policy do not occupy an ''Office of Profit or Trust'' within the meaning of the Emoluments Clause. See Letter Opinion for the Deputy Legal Advisor, Department of State, The Advisory Committee on International Economic Policy, 1996 OLC LEXIS 63 (1996).
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Unfortunately, the 1994 unpublished letter to Conrad Harper at the Department of State has not, to my knowledge at least, been made public. When I learned of its existence, long after ACUS had been abolished, I requested from OLC and the Department of State both a copy of the letter and any underlying documents from the State Department to OLC that might help illuminate OLC's new rationale. Because I was now a member of the academic community, I had to make my request pursuant to the Freedom of Information Act. My FOIA requests were denied by both agencies. So the bases for OLC's 1994 change of heart, and the factors that influenced it, are, as best I can tell, still not publicly known.
OLC did issue a brief, two paragraph, published opinion on the subject in 1996. However, in that opinion OLC simply pointed to various factors that took members of the State Department's Advisory Committee on International Economic Policy out from under the Emoluments Clause. OLC pointed out that the members of that advisory committee met only occasionally, served without compensation, took no oath, and did not have access to classified information. OLC further indicated that the State Department committee was purely advisory, was not a creature of statute, and discharged no substantive statutory responsibilities. Beyond noting these factors, however, OLC failed to set out in any principled way which of these seemingly key characteristics, or combination of them, would render other advisory committee members subject to, or not subject to, the Emoluments Clause. For example, is the mere fact that Congress created the advisory committee by statute sufficient, by itself, to render advisory committee members subject to the Clause? If so, why is that so, and are the other factors thus either irrelevant or surplusage insofar as OLC's analysis is concerned? In the circumstances, OLC's view on the applicability of the Emoluments Clause to prospective ACUS members cannot be determined. Nonetheless, if rigidly or individually applied, the fact that the Conference is created by statute, that the membership as a whole is technically responsible for the Conference's activities, and that, through its Chairman and permanent career staff, it performs statutory duties other than making recommendations, could be seen to subject the non-government members to the Emoluments Clause. So Congress needs to declare its intent that ACUS' non-government members be treated in the same way as members of other advisory committees and indicate that it is aware of the OLC opinion but does not believe that the Emoluments Clause should be a barrier to service by ACUS' academic members or individuals in large law firms as long as the non-government members do not, themselves, represent foreign governments. This is plainly within Congress' constitutional capacity to do.
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I would point out that, apart from ACUS' statutory creation, none of the other factors noted as relevant in OLC's 1996 opinion apply to non-government ACUS members. Non-government members meet only occasionally, serve without compensation, do not have access to classified information, and are not required to take an oath. They perform purely an advisory role akin to that performed by advisory committee members throughout government. The job of the Assembly of the Conference, made up of its entire membership, is to study issues of administrative procedure and adopt recommendations for improvement. See 5 U.S.C. §595(a), setting out the Assembly's statutory responsibilities. Although the Assembly technically ''has ultimate authority over all activities of the Conference,'' its functions are necessarily confined by the specific administrative and executive powers conferred expressly on the Chairman and the Council in 5 U.S.C. §595(b) and (c). And, as a practical matter, during my term of office at least, the Assembly and its non-government members (apart from the 5 non-government members of the Council) did not perform any functions that were not related to their advisory responsibilities. In short, the Assembly, meeting twice a year in Plenary Session, and through its committees on an irregular basis at other times, was entirely a recommending or advisory body.
ACUS' statutory footing or its other statutory responsibilities do not alter the advisory role of its non-government members. Although ACUS is both a statutorily created federal agency and an advisory committee, its non-government members participate only in its advisory functions. The statute created the position of Conference Chairman as its chief executive. He or she is a full-time federal employee who, along with the professional staff, conducts ACUS' day-to-day activities. The Chairman and staff ensure implementation of ACUS recommendations and the accomplishment of any statutory assignments given to ACUS by Congress. They serve as a clearinghouse for government agencies on administrative process issues. In other words, to the extent that ACUS as an agency performs tasks that might be considered to be non-advisory, these tasks fall within the purview of the Chairman and staff, who, as federal officials, are clearly subject to the Emoluments Clause.
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ACUS' 40-year history testifies to the fact that Congress has always known about—and, indeed, has endorsed and statutorily required—the appointment of distinguished law professors, lawyers in private practice, and other experts as non-government members. There were two temporary Conferences, neither of which was established by statute—the first created by President Eisenhower in 1953, the second established by President Kennedy in 1961. They were made up of law professors, lawyers in private practice, and other experts, with a federal judge as chairman. Those Temporary Conferences were explicitly the model for the statutorily established Conference created by Congress in the Administrative Conference Act of 1964, P.L. 88–499. Indeed, in section 593(b)(6) of Title 5 Congress expressly required that non-government members shall be chosen to ''provide broad representation of the views of private citizens and utilize diverse experience. The members shall be members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to Federal administrative procedure.'' Establishment of ACUS by statute worked no change in the basic advisory role of its non-government members. An Administrative Conference rooted in a statute, as recommended by both temporary Conferences, was intended solely to give the advisory body permanent status. In my opinion, if anything, ACUS' statutory underpinning, and Congress' express articulation of membership qualifications, manifests de facto congressional consent to any Emoluments Clause issue that a statutory foundation, standing alone, might be seen to pose.
But I recognize that the 1993 OLC opinion will complicate and compromise ACUS' ability to attract the most distinguished individuals from the private sector. So Congress should eliminate any ambiguity by amending the statute as part of the reauthorization process. There is no drawback in doing so. The Assembly, and its committees, have always operated, and must continue to operate, pursuant to the openness requirements of the Federal Advisory Committee Act, 5 U.S.C. Appendix, as do other federal advisory committees. Non-government members must comply with pertinent Office of Government Ethics disclosure requirements. So I recommend that Congress make two statutory modifications. First, it should delete the second sentence of section 595 that confers on the Assembly ''ultimate authority over all activities of the Conference.'' This will eliminate any technical argument that the Assembly plays a role in the administrative operation of the agency. Second, it should add a final sentence to section 593(c) to provide explicitly that ''Members of the Conference from outside the Federal Government do not, by virtue of their appointment, hold an ''Office of Profit or Trust'' within the meaning of Article I, §9, cl. 8 of the U.S. Constitution.'' At a minimum, Congress should make clear in the legislative history that, in reauthorizing ACUS, it fully anticipates, and consents to, membership by individuals who are members of the practicing Bar, scholars in the field of administrative law or government, or other experts in federal administrative procedure irrespective of any highly attenuated relationship with a foreign entity of the type OLC found to implicate the Emoluments Clause.
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I appreciate the opportunity to participate in the subcommittee's hearings and I sincerely hope that they are the beginning of a process that leads to the reauthorization, re-creation, and funding of the Administrative Conference.
Mr. CANNON. Thank you, Professor.
Ms. Payton, would you—we have only one microphone but it works, which is nice.
STATEMENT OF PROFESSOR SALLYANNE PAYTON, WILLIAM W. COOK PROFESSOR OF LAW, THE UNIVERSITY OF MICHIGAN LAW SCHOOL, ON BEHALF OF NATIONAL ACADEMY OF PUBLIC ADMINISTRATION
Ms. PAYTON. I will try not to say anything too startling.
Mr. Chairman, Members of the Committee, thank you for inviting me to testify on the reauthorization of the Administrative Conference of the United States. I am the Cook Professor of Law at the University of Michigan Law School. As you know, I served on the Administrative Conference continuously for five presidential administrations. I am a past Chair of the Administrative Law Section of the American Association of Law Schools, and since 1998 I have been a Fellow of the National Academy of Public Administration and a member of the Standing Panel on Executive Organization and Management, which I will refer to as EOM panel.
I currently serve as the Director of the Academy. The Academy itself does not take positions on pending legislation. That function is located in the standing panels, such as the EOM panel, and I am here on behalf of the EOM panel. I am expressing today the management view, if you will, of the Administrative Conference. I have coordinated my testimony with Sally Katzen, who has contributed a statement for the record, and I concur in her views. Since she cannot be here in person today she has authorized me to speak to any questions regarding her statement.
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My testimony reflects also the strong views of the EOM panel, which recently met and after deliberation voted to express its strong support of restoring the Administrative Conference. The EOM panel includes many present and former senior managers of the Government. I must say that this is the first time I have ever known my colleagues on the EOM panel to express enthusiasm for lawyers, and so the position of the panel should be taken as a measure of this wide esteem in which ACUS is held.
You have my written statement. In these oral remarks the principal point I want to make is that good administrative process and procedure are part of the critical infrastructure of Government. Like other infrastructure, they are likely to be taken for granted and neglected until problems build into crises or something major goes wrong. In the Government of the United States, only ACUS ever had the mission of engaging in constant correction and improvement of the procedure and process infrastructure.
ACUS was what we call a community of practice. It was a community of practice of administrative law professionals. Its members spanned all the agencies, administrations and different political parties. It included both academicians and practitioners which fused public and private. ACUS was led from the top. The roster of its public members and consultants was a virtual Who's Who of administrative law.
Moreover, these luminaries worked hard. ACUS projects for the most part were difficult, technical and esoteric, some would say boring, the ordinary work of tending after the administrative process.
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Now many of the lawyers who are supporting restoration of ACUS have spoken warmly of the bipartisan and collegiality of the Conference. From a management perspective, the attractiveness of ACUS to the professional community meant that prominent and distinguished people were willing for the sake of that collegiality to focus on operational issues that would otherwise never have claimed their attention. The Government benefited enormously by assembling and hosting ACUS. It stimulated the members of the Conference to do the work of the Government.
Now, I don't mean that ACUS was perfect, only that it was, as we now know, irreplaceable. The EOM panel therefore encourages restoring it with its virtues intact.
Now, our analysis of the relationship between ACUS's structure and performance leads us to urge caution with respect to changing in any significant respect its role and responsibilities. We recognize that the world has changed since 1994 and so have the concerns of administrative lawyers, as Professor Edles just pointed out. We have moved off the old agenda on to a new agenda, but it is still the agenda of administrative law. We believe that the task of deciding how to retain the old virtues of ACUS, while meeting new challenges, can safely and appropriately be entrusted to the administrative law community, itself operating under its original and quite flexible ACUS charter.
The EOM panel therefore supports restoration of ACUS under its original charter. I thank the Subcommittee for reexamining this issue. You are doing a great service.
[The prepared statement of Ms. Payton follows:]
PREPARED STATEMENT OF SALLYANNE PAYTON
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Mr. Chairman and Members of the Subcommittee:
I greatly appreciate your invitation to testify in favor of the reauthorization of the Administrative Conference of the United States, known as ACUS or ''the Conference.'' I am the William W. Cook Professor of Law at the University of Michigan Law School. I served on the Conference continuously through five presidential administrations as a Public Member and then a Senior Fellow, beginning in 1978 and ending in 1995 when the Conference was disbanded. In 2001–2002 I was Chair of the American Association of Law Schools Section on Administrative Law. Since 1998 I have been a Fellow of the National Academy of Public Administration and a member of its Standing Panel on Executive Organization and Management (EOM Standing Panel). I currently serve as a Director of the Academy.
My testimony today has been coordinated with that of Sally Katzen, and I concur in her views. Since she cannot be here in person today she has authorized me to speak to any questions regarding her testimony. My testimony also reflects the views of the EOM Standing Panel, which recently met and deliberated on the question of restoring the Administrative Conference. The panel voted to express its strong view in support of reauthorization. I will focus these remarks on the reasons for this solid endorsement.
One of the challenges of managing a government as diverse in mission and organization as is the Government of the United States is to locate responsibility for common functions where they can be performed most effectively at the appropriate scale. Administrative processes and procedures are ubiquitous in government, but being matters of technique rather than substance they tend to claim a smaller share of the attention of agencies and the Congress than do more concrete and pressing concerns.(see footnote 1) They are not for that reason unimportant. It is through administrative processes and procedures that most people interact with government. These processes and procedures are part of the essential infrastructure of government, and continuous attention must be paid to them. The ability of government to conduct itself appropriately, and to monitor and improve its procedures and processes, is therefore a critical piece of organizational competence. It is true that the judiciary has power to review agency action at the behest of an appropriate party with a legally-protected interest, but judicial review is available for only the thinnest sliver of the work of government, and in any event the mission of the courts is to decide disputes and to focus on larger-scale institutional relationships, not to improve administrative systems.
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The heavy pressures on Government to discharge immediate responsibilities may at times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity; and the demands of the daily job may lessen the will to achieve change. . . . The committees of Congress, suitably concerned as they are with matters of substantive policy, can only sporadically occupy themselves with the details of methodological and organizational problems . . . Nor do we think that hope of major accomplishment lies in occasional studies by groups external to the Government. . . . The current need is for continuous attention to somewhat technical problems, rather than for public enlightenment concerning a few dark areas that cry for dramatic reforms. A discontinuous commission . . . is unlikely to have great impact upon the day-to-day functioning of the Federal agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy (Dec. 17, 1962) (urging establishment of permanent Administrative Conference) (on file with ACUS), cited in Testimony of Sally Katzen before the House Committee on the Judiciary Subcommittee on Administrative Law and Governmental Relations in Support of the Reauthorization of the Administrative Conference of the United States, April 21, 1994, reprinted in 8 ADMIN. L.J. AM. U. 649, 653 (1994) (emphasis supplied).
There is thus a void, which the Administrative Conference was created to fill. The Conference was a remarkable institution. In the current argot of organizational theory, it would be called a ''community of practice.'' In her 1994 testimony in support of the reauthorization of ACUS, Sally Katzen described the Conference as it then existed:
By statutory design, a majority of the Administrative Conference's members represent government departments and agencies. All major departments and agencies are represented and each department or agency chooses its own representative. The caliber of the individuals who represent these agencies attests to the importance that the agencies, as well as the Administration, assign to the Administrative Conference's functions. . . . The government officials join forces with distinguished private citizens, called ''public members''—law professors, public interest lawyers, private practitioners, economists, public administrators—who volunteer their time and talent because they share the view that this unique public-private partnership significantly improves the way government regulates its citizens or delivers services to them. The Administrative Conference Act requires that the Administrative Conference chairman select members from the private sector who are ''members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to federal administrative procedure.'' . . . The Administrative Conference ha[d]s a long-standing tradition of private sector membership that crosses party and philosophical lines . . .(see footnote 2)
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I am sure that all of the witnesses before this Committee who have been on the private side of this public-private partnership would attest that serving as a Public Member of the Conference was challenging, the work being frequently complicated, esoteric and technical. Nonetheless, Public Members of startlingly distinguished professional standing viewed participation in the Conference as a high calling and worked their way devotedly, largely at their own personal expense, through procedural and process issues of which no notice was likely to be taken outside of the circle of administrative lawyers, and for which they would receive no credit.
This willingness on the part of the leaders of the administrative law community to contribute personally to the work of ACUS was an expression of their commitment to improving the important below-the-radar processes that are critical to the well-being of those who have to depend on or do business with government. I think, for example, of the work that ACUS did on the process for designating ''representative payees'' for Social Security recipients who cannot care for themselves but who have not been declared legally incompetent.(see footnote 3) What was unique about the Conference was that highly-compensated lawyers, leading academicians who specialized in constitutional theory, and sitting federal judges who turned out to be future Supreme Court Justices, among others, believed that making sure that processes of this sort were tailored correctly was worth their time, because these processes mattered to the public.
Even partisan competition was subordinated to the members' determination to achieve good administrative principle and practice. The Conference's bipartisanship was so pervasive that it functioned as nonpartisanship, in the tradition of ''good government.''
Like any organized community of practice, the Conference maintained an informal institutional memory and a repository of useful information that was made available to those who sought its advice, whether or not they were located in the Executive Branch. It is worth remembering in this context that at any given time a substantial fraction of the people who have responsibility for designing, conducting or reforming administrative processes and procedures are new to their jobs, or have never had occasion to think about the type of issues confronting them. There are new Hill staffers and new independent agency commissioners, who need a source of trustworthy information and advice. Turnover among agency officials produces a constant inflow of people who need to be informed about their responsibilities. Best practices need to be identified and information about them disseminated. No individual agency is in a position to maintain a comprehensive information base on federal administrative process and procedure; nor can any administrative or other operating agency always take on the role of thinking conceptually about its own work in the context of general principles of administrative process. Responsibility for these functions must be centralized; it must be prestigious; and it must be impartial. The Conference was all of these things. Some of the greatest praise for ACUS has come from Members of Congress who had occasion to call on it for information and advice. Many members of the EOM Standing Panel have had similar experiences, and view ACUS as having been a highly useful organization.
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The case for restoring ACUS thus seems overwhelming to my colleagues on the EOM Standing Panel, because we have great respect for its unique—and, as we have observed during the years since its demise, irreplaceable—function. Much has changed during the past ten years, however, and we understand that among those who favor placing ACUS back in service there might be some sentiment for modifying its charter to give the organization a broader role and responsibility, and an instruction to take on matters of greater salience. On this point the members of the EOM Standing Panel were unable to agree among ourselves, and we urge the Committee to be cautious. It is not intrinsically difficult to attract high-level attention to high-visibility issues; it is much more difficult to attract high-level attention to low-visibility issues. The genius of ACUS was that although its charter was (and still is) flexible enough to encompass virtually any subject that can plausibly be characterized as a matter of ''agency organization, procedure, or management''(see footnote 4), as distinct from pure substance, its broadly representative structure drove it away from issues that might have provoked partisan strife and toward addressing a continuous stream of low-salience problems that were important to people who actually had to deal with the government. As we have learned during the years of its absence, if ACUS does not do this work, no one will. We urge the Committee to reauthorize ACUS using the existing language of its charter, to put ACUS back together as nearly as possible just as it was, and to allow ACUS to find its own way in its new environment.
To carry out the purpose of this subchapter, the Administrative Conference of the United States may (1) study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs. . . .
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5 U.S.C. §592 (3) defines ''administrative procedure:''
''administrative procedure'' means procedure used in carrying out an administrative program and is to be broadly construed to include any aspect of agency organization, procedure, or management which may affect the equitable consideration of public and private interests, the fairness of agency decisions, the speed of agency action, and the relationship of operating methods to later judicial review, but does not include the scope of agency responsibility as established by law or matters of substantive policy committed by law to agency discretion.
I thank the Subcommittee for reexamining this issue and for considering the restoration of the Administrative Conference.
Mr. CANNON. Thank you. We appreciate your comments.
Mr. CHABOT. Mr. Chairman.
Mr. CANNON. Yes.
Mr. CHABOT. If I could speak out of order for just a moment.
Mr. CANNON. Absolutely. Do you have other commitments?
Mr. CHABOT. Yes, I have a hearing that I have to attend on Iran nuclear proliferation. I have heard the other three testify. Professor Harter, I have yours in my hand. I assure you I will read it this afternoon. So I apologize.
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Mr. CANNON. Thank you. More time for questions for us. Professor Harter.
STATEMENT OF PROFESSOR PHILIP J. HARTER, EARL F. NELSON PROFESSOR OF LAW, CENTER FOR THE STUDY OF DISPUTE RESOLUTION, UNIVERSITY OF MISSOURI LAW SCHOOL
Mr. HARTER. Well, this is the part of the schizophrenia of this issue.
Mr. CANNON. We would hope that the structure that we come up with for ACUS is simple and flexible enough to accommodate the problems that we have in daily life, like getting our light system to work.
Mr. HARTER. Let me begin by saying that after a—my title of Earl F. Nelson Professor of Law is very much of a newbie. I have spent 35 years here in Washington working with agencies, among them, and in that I have observed them in action, and I do want to point out that that is two words. And I am here to wholeheartedly support the resurrection of the Administrative Conference, and I want to do it really on two grounds. One is that I think that the reestablishment would not only save the Government significant sums of money. Clearly I think we need it as an investment, but also that it would enhance democratic or, if you want to be nonpartisan about it, civic republican values in America, of just how the people participate in the Government.
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You look back, since the APA was enacted in 1946, significant changes have taken place in the management structure of the Federal Government. There are new forms, major new forms of public-private interaction, reliance on the private sector with oversight by Government, new developments and relationships between Federal and State governments, new perceptions of how the Government should and should not function when making important decisions in relationship with individuals in the private sector. If you think about it, agencies in each individual agency, entity, each individual subagencies, hundreds of them, must confront each of those demands daily, each time they take action, and so similar choices must be made over and over and over again in Washington. Agencies lack the way of finding out what works and what doesn't work.
Let me go over some specifics as to some of the needs. I was recently—gave a little pep talk to an agency on how negotiated rulemaking works and whatever, and a couple of representatives from other agencies heard that I was going to do it and asked if they could attend, and the answer was no. Bizarre. It was a lack of sharing experiences across agencies to support insights.
One of the major provisions of the Administrative Resolution Act is its confidentiality provision. It was one of the leading early provisions. It had some ambiguity, some interpretation. How do you dovetail mandatory confidentiality at agencies with inspector generals, how various parts work.
What do we have? Federal Government set up a committee to talk about guidance for confidentiality and dispute resolution proceedings. The American Bar Association set up a committee to talk about confidentiality in administrative dispute resolution proceedings. Now, even though these parties are going to be in the same proceeding, those two committees don't talk to each other. They come up with different advice. There is no way to share the insights or to come up with a common set of goals on how to implement. The communication has broken down.
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Second, if you go through and look at an awful lot of the recent legislation, that because there is no ACUS, Congress is ad hocking it. It will require agencies—well, go talk to the National Research Council. There is no continuity. There is no standing membership. There is no particular insight into the broad perception, so let's just go out and find out individual aspects.
One that I found interesting was American University held a major conference on electronic rulemaking earlier in January. One of the major reasons given for expanding e-rulemaking, and certainly it has major aspects in e-data acquisition and management but another aspect is the accessibility of the American public, an ability to participate in rulemaking via the Internet. And I will tell you when they were talking about what they were going to do it just sent shivers down my spine. If implemented without care, it will just basically disenfranchise individuals because what they are talking about is establishing a dialogue for rulemaking, basically an ad hoc, negotiated rulemaking. What individual has the time to be there? Only the organized interests are going to be on the other end of that communication. It will be in fact ex parte communication in broad daylight.
We broke down into work groups and in my work group that I chaired, and it was really a bizarre, you know, which turned out to be a broadly representative group—was strongly of the view that the Government needed to establish an advisory committee of public and private people to advise on public participation. After all, the whole name of it is how the private people participate in Government. Wouldn't it be nice if the Government asked the private people how it ought to work? And so based on that, I sent a petition, or a letter I guess actually, to three of the leaders of the e-rulemaking effort suggesting that an establishment of an advisory committee could be a good idea, to which I got a resounding nothing. Not an answer. I was told by somebody who was at the meeting that my answer said all they want to do is take a hold and take it away. It was some kind of pejorative answer. All of those issues would be addressed by an Administrative Conference wishing to have a dialogue among the parties, desperately.
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So what has happened is the private sector is talking to themselves, the Government is talking to themselves without bridging, and we have got to get over that. That is what we are talking about in the e-rulemaking—I mean in the EU process.
I think as to the membership, I would—although I think that the statute is fine, I would urge a much broader membership of—I mean if you listen to the four of us the words ''administrative law'' creep in a lot. It isn't just administrative law. It is administration. It is the Administrative Conference, not the Administrative Law Conference. I think you need experts in management. You need economists. You need public administrators. You need all levels of Government. You need political agencies, senior service, and you need the staff. After all, it is the staff that is going to implement all of that and I think the staff has been woefully underrepresented in the Conference.
So I would hope that in its new incarnation that it be really broadly represented of diverse interests that would be affected by it.
Lastly, the question of appropriations. I would admit to a mistake, an error in my prepared testimony that I sort of abstracted, which I think the current value of the original appropriation would be $10 million, and I was wrong as to what the original appropriation is. But I still think that is a good figure, because I think that you really do require resources to go out and do the sophisticated stuff, to answer a lot of the questions that have been raised by you and by the other panelists, and again I think that will be an investment well made. Iurge your action and I am excited that you are undertaking this.
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[The prepared statement of Mr. Harter follows:]
PREPARED STATEMENT OF PHILIP J. HARTER
My name is Philip J. Harter. I am the Earl F. Nelson Professor of Law at the Center for the Study of Dispute Resolution at the University of Missouri—Columbia School of Law. I whole heartedly support the resurrection of the Administrative Conference: Its re-establishment would not only save the government significant sums of money, it would also enhance democratic—or, to be non-partisan about it, civic republican—government.
BACKGROUND AND PERSPECTIVE
I would like to provide a bit of my background since it forms the perspective for the observations that follow. To a very real extent, the Administrative Conference has determined the course of my professional life. Thirty five years ago right now I was a research assistant to Professor Roger Cramton at the University of Michigan Law School. The project we were working on ultimately became ACUS Recommendation 2, and Professor Cramton became Chair of ACUS. I later became Senior Staff Attorney at the Conference and developed a program on regulatory reform. After I entered private practice, I was subsequently a consultant to the ABA's Coordinating Committee on Regulatory Reform that played such a crucial role in the debates of the late 70s and early 80s. In the mid-90s I chaired that committee, and in that capacity I had the honor to work closely with this Committee.
I have been a consultant to the Conference on several occasions. Probably most notably, I developed negotiated rulemaking as a consultant to ACUS and wrote a series of articles on the use of dispute resolution techniques by the Federal Government. Those articles resulted in the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. Through its recommendations, oversight, and consultations, the Conference played a pivotal role in improving the way government agencies make decisions affecting the public.
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THE DESPERATE NEED FOR ACUS
The processes government agencies use to make decisions are complex, difficult, and continually evolving. The flexible, scant procedures outlined in the Administrative Procedure Act have been supplemented by numerous Executive Orders, judicial decisions, and ad hoc statutory requirements. Moreover, since the APA was enacted in 1946 significant changes have taken place in the management structure of the Federal government, and there are new forms of public-private interaction, new developments in the relationship between Federal and State governments, and new perceptions as to how the government should function when making important decisions. Officials in each agency must confront all of these demands each time they take action. As a result, similar choices must be made over and over again in the halls of Washington about how to make decisions.
Oftentimes officials have little information as to how well a program implemented by another agency works or little guidance as to how the duties could be successfully discharged or major pitfalls avoided. Those who deal regularly with multiple agencies have witnessed the dire need for some means by which agencies can share insights and experiences and to gain expert advice as to the best ways to go about the public's business. Without it, agencies necessarily incur high transaction costs by repeatedly reinventing similar procedures; the lack also means the best ideas are not recognized, strengthened, and used more widely nor the worst improved or discarded.
Further, advice would be helpful both to Congress and the agencies as to the potential structure of new ways to achieve public goals and to respond to public inquiries and criticisms about how individual agencies have functioned. And, Congress and the agencies alike could benefit from the insights and advice of those who are directly affected by the administrative process and from those who study it from a variety of perspectives.
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Since the demise of ACUS, we lack the means to refine how we do the public's business: no office or organization regularly convenes a broadly representative group of experts to deliberate about how to improve the quality of the administrative process. A permanent entity such as renewed ACUS is needed that can be devoted to solving the problems of excess costs, delays, and burdens that are imposed upon the agencies and upon the public by inadequate, inefficient, and duplicative government processes.
Individual agencies, while they have the ability to review their own performance, lack the capacity to make cross-cutting agency reforms and comparisons. Furthermore, agencies acting alone cannot make the necessary procedural reforms for the improvement of administrative process as a whole. And, agencies usually do not have the incentive, will, or resources to conduct a thorough self-examination to see if they could do things better.
A forum for collegial self-critique and development of effective administrative practices is eminently desirable. Moreover, one is needed that can bring a sense of unity to administrative agencies and promote an appropriate degree of uniformity in their procedures. Congress should, therefore, establish such an institution that will systematically seek to promote improvements in the administrative process: The Administrative Conference is just such an agency.
The primary purpose of revitalized ACUS would be to care for the improvement of the administrative process. In doing so, it would examine government procedures and practices, with the goal being to search for new ways of helping governmental agencies function more fairly, efficiently, and effectively. The organization could play a leading role in the development of domestic administrative law doctrines. One of its foremost functions would be to review and evaluate whether the basic law governing administrative procedure, the Administrative Procedure Act (''APA''), as well as other procedural requirements should be revised and updated. It could also arrange for the interchange among administrative agencies of information potentially useful in improving administrative procedures. Another role it could discharge would be the preparation of resource documents, bibliographies, and advice and recommendations on various topics confronted by agencies. Although now aging, ACUS handbooks are on the desks of many of the leaders in the administrative process on both sides of the great public-private divide.
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The new ACUS could also focus on the more minute details of the administrative process as well. Specifically, it could study and adopt recommendations concerning better rule-making procedures, or ways to avoid legal technicalities, controversies, and delays through agency use of alternative means of dispute resolution. For example, the exploding use of the internet and other forms of electronic communication present wonderful opportunities for increasing the information available to our citizens and their participation in our affairs. But, tapping these resources and making sure they work effectively and efficiently is itself a daunting task. A recent conference on e-rulemaking held at American University pointed out many potential problems that could arise if the procedures used for e-rulemaking were not carefully developed; the public at large could effectively be disenfranchised. Moreover, a strong recommendation was made that since much of the work on e-rulemaking is being done in the name of enhancing public participation, it would help if those in the government actually consulted with interested parties in the private sector. Yet, multiple requests to leaders of the e-rulemaking effort for the establishment of an advisory committee that could provide such advice and make recommendations to protect against abuse went unanswered. That experience alone points to the dire need for an oversight body.
Another focus would be to collect information and statistics from administrative agencies and to publish reports that could be useful for evaluating and improving administrative procedure. It could also evaluate the judicial review of agency actions and make recommendations for its improvement. A major issue confronting the administrative process that has emerged forcibly in the past few years is the delicate balance of open government in a time of concern over national security and the means by which requirements are imposed on our citizens and businesses to protect our homeland.
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Another purpose for renewing ACUS could be to serve as a regulatory ombuds. It could in appropriate circumstances investigate and respond to individual complaints and undertake a systematic performance review of various government agencies, especially of those agencies with serious operational and programmatic problems. Individual agencies themselves often resist any critical self-evaluation in response to public complaints due to burdensome workloads or a failure to admit the flaws in one's own prior decisions. An independent, objective entity, unfettered by internal agency politics and its own inertia, can offer meaningful recommendations to improve the operational structure of administrative agencies.
We also lack a repository on administrative processes that the various state governments could call upon for high quality administrative procedural advice. ACUS could consider ways to improve federal, state, and local relations in different areas, including those in which state and local agencies administer federal programs. The organization could attempt to promote cooperation and coordination on interstate administrative procedural matters to foster a responsible and efficient administrative process among the several states. The entity would be equipped to advise state agencies and their staffs of significant legal developments and emerging trends occurring in the area of administrative procedure.
Another major issue in administrative procedure comes from the international harmonization of laws and regulations. As a result of harmonization, many domestic regulations will need to be changed to bring them into conformity with the international requirements. Just how that is to be done is a complex, controversial issue that needs to be addressed.
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ACUS was structured to develop objective, non-partisan analysis and advice. It had sufficient independence from particular policy-based responsibilities, and hence its recommendations were given credence and were seen as a detached analysis. The structural makeup could bring together an inter-disciplinary collection of experts in the administrative process. Membership would preferably include: committed senior management agency officials, professional agency staff, representatives of diverse perspectives the private sector who deal frequently with agencies, leaders of public interest organizations, highly regarded scholars from a variety of disciplines, and respected jurists. The problems that ACUS should address include management as well as legal issues. Thus, its panel of experts should be comprised of members with both legal backgrounds and those who may not have legal training, such as management, public administration, political science, dispute resolution, and law and economics. State interests should also be included in the entity's membership by sending representatives from certain state agencies or state organizations.
One final point should be made: Although it is currently politically unfashionable to suggest that funding should be increased, that is clearly the case here. Throughout its life, ACUS was a huge bargain for the United States. But towards the end, inflation had taken a huge toll on its stationary authorization, and it was not able to function to the full extent of its potential. I suggest strongly that the in the process of re-establishing the Conference, the appropriate level of funding is the amount of the original statute updated to reflect inflation. My own, back of the envelope calculation is that that figure would be about $10 million. From 35 years of observing the Federal government in action (note that's two words), I firmly believe that such an amount should be viewed as an investment that would be paid back many times over. Even if it were not, the improved quality of the decision making process would be more than worth it. For example, what number would anyone put on the costs to our society if the procedures that are bursting upon us from the electronic age and globalization are not implemented appropriately? This is a tiny price.
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The new ACUS will help significantly in ensuring that our public decisions are made effectively, efficiently, and fairly. That is clearly a major undertaking, but one ACUS is structured to discharge for the benefit of us all.
Mr. CANNON. Thank you, Professor. We only have two Members here but we are going to strictly abide by the 5-minute rule and I will—you poke me, because I think we are going to have several rounds and then I would probably do better if we go back and forth in that fashion.
Now, you know, I have a brother who actually served on the ACUS twice and you know him, Professor Harter.
Mr. HARTER. Can I tell a wonderful story?
Mr. CANNON. Yeah, you can, but let me ask a question first. You worked on neg reg a lot, and he keeps telling me that he is solely responsible. Can you clarify the record on his role?
Mr. HARTER. Well, it is certainly true. We were on a panel together and it really resulted in one of those lines that I absolutely love. And I can't remember how the line came up, but we reached a disagreement. He said, well, wait a minute, I have the authority to issue that rule. Why should I work with this committee? And I turned to him—this is all off the record—and I said you have the authority but you lack the power. And that is when he became really very much of a proponent of the whole idea of working it out with the political constituents.
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Mr. CANNON. That was between times, I think, on the ACUS. Thanks. Let me just ask a question that I would like you to respond to and then Ms. Payton, because Ms. Payton is saying no changes and you are suggesting a substantial broadening to bring in professionals from other scientific areas.
I take it you are actually thinking in terms of an increased appropriation to have more staff because you talked about staff in particular, and then going to all levels of Government. Do you want to flesh that out a little bit and then, Ms. Payton, I would like to get your view on that.
Mr. HARTER. I think that the structure at the Conference both in terms of numbers and everything is probably okay. I would just again in the appointment process, would look for more diversity of professional and diversity in general and I mean, I think some of the serious management expertise, which I think would—really a little more economic ideas, a little more, again, different levels of Government, State representatives, maybe a NAAG or State Governors. I think it would because of the public-private. And I think that on the staff level, having a different perspective, and I think some of the issues that both—the committee and here have talked about, we are facing huge scientific issues. So I think having some degree of a technical ability would also help as well. So I don't think it needs to be major, and I think the structure still works.
Mr. CANNON. Is that consistent with what you are thinking, Ms. Payton?
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Ms. PAYTON. Well, the way I read the charter, I thought that there was authority to appoint those kinds people as public members anyway.
Mr. HARTER. Oh, absolutely.
Ms. PAYTON. And I also think that ACUS has the authority to appoint to its committees people who are not public members of ACUS. I believe we have done that. We can. They can.
Mr. CANNON. So you believe that when you talk about the group could regulate itself, you believe that there is plenty of latitude in the current charter to do the kinds of things?
Ms. PAYTON. That is the way I see it. Now Gary may have more.
Mr. EDLES. I think that is absolutely right. I mean it does, the statute does indicate that there are to be private citizens, members of the private bar, but also other experts in the administrative process. And historically ACUS did have economists. We often had members, I remember—I believe David Piddle, who was then a Consumer Products Safety Commissioner, who was basically an engineer, who participated actively in ACUS activities. So we did have representation even in the old days of people who were not lawyers, although I must say it was fundamentally, I think, a lawyers organization.
Mr. CANNON. Mr. Gray.
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Mr. GRAY. I think in terms of the studies that were commissioned, they could be studies by economists or scientists. There was no limit. It wasn't only study by lawyers. So there was plenty of access to expertise outside the law.
Mr. CANNON. Good. Maybe in this context can we talk about funding, because when you go outside, I mean what you had in ACUS was all these incredibly brilliant people who came together and participated with relatively small budgets. But when you did study on the outside you commissioned those funds for those and that cost money. I suspect what we will do is include in our report language the idea that we should be looking at these broad groups of people to be representative. But do we need more money than what we are talking about so we can do these kinds of studies, and maybe, Mr. Gray, you can take that question.
Mr. GRAY. I really would like to get Gary's perspective on this, but I think it would be very useful to have more funding because our outreach would be much broader. I have taken as an example, what I suggested, which may not be workable, but this EU comparative project I think would be ultimately better done by an impartial entity like ACUS rather than a private entity with questions about its funding. It is going to cost a hundred thousand dollars to do that.
Mr. CANNON. I am sorry. How much?
Mr. GRAY. A couple of $100,000 and that is not the kind of thing the private sector can come up with without raising questions about where it came from, and yet it is not that much, it seems to me, for it be funded out of something like that because it is not a backbreaking, seems to me, figure. All I know is there are all kinds of budget constraints.
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Mr. CANNON. I would like to pursue this topic a little bit more so we can get some clarity on the record, but my 5 minutes has expired and we will come back to that.
Mr. Watt, would you like to take 5 minutes?
Mr. WATT. Thank you, Mr. Chairman. Let me just play devil's advocate here for a little bit, because we have now heard from six witnesses, all of whom have been vigorously in support of reauthorizing, and while I certainly share that view, one of our obligations, I think, and in the process that I described and referred to in my opening statement works best, we get both sides of an issue and there has not been any witness yet who has said this would be a terrible idea.
Let me be further provocative to—and probably counterintuitive to assume that there was a rational basis for terminating the Administrative Conference of United States. When I look back and realize that that happened in 1995, I kind of have to step back from that because there was a lot of stuff happening in 1995 that was not based on any rational evaluation. So I have got an opportunity here to put all of this together because I have got people, I think, who understand the history of how we got here.
What was the rationale, if there was a rationale, for terminating this agency?
Mr. EDLES. I can tell you what the House Appropriations Committee report said, which is simply that ACUS had completed its mission as of 1995. As to whether there were other rationales, I can only say what the public report said.
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Mr. WATT. Were there any kind of hearings to document the completion of that mission or any discussion to build a record in support of that conclusion?
Mr. EDLES. There was a hearing—there were hearings, I think, before this Committee which fundamentally came out supporting the Administrative Conference. We did have our usual, you know, hour and a half or 2 hours before the Subcommittee on Appropriations. That was the oversight provided for us insofar as our annual appropriation was concerned and it was presumably on the strength of that, you know, hour and a half meeting and information we had submitted in which the Subcommittee came to the conclusion that we should be—we should no longer be funded. But I think it was an era, quite frankly, in which there was a looking around to see if there could be widespread Government retrenchment.
Mr. WATT. This was reform.
Mr. EDLES. And our little agency, I think, is what came up in that time.
Mr. WATT. Mr. Harter, you look like you are just chomping at the bit——
Mr. HARTER. No, I am not sure I am chomping.
Mr. WATT.—to respond to this question.
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Mr. HARTER. I will add a little bit to the discussion, and in my view I think it was time that the Conference needed to be revitalized. I mean I think that it needed to be energized and what not. I am not sure that I would take the boot heel that was taken to it, I mean to this kind of the ultimate one. But I think it needed resparking along the lines that I think a lot of us have been talking about here, and I think in part my view is that it lacked as much of the energetic and enthusiastic support at that time that you are seeing now for the reconstruction of it.
I mean, I think that a lot of issues have emerged that are not getting addressed, and so it might be that this had become slightly torpid in that way.
Mr. WATT. Mr. Gray, you were—you said you testified at a hearing where this was evaluated. Were there compelling reasons advanced on the opposite side of where you were? You were in favor of reauthorizing, according to your testimony. Were there other people on the other side who were making some compelling arguments to terminate?
Mr. GRAY. Well, I have to be candid since I am testifying. There were interests, private interests, if you will, that were opposed to the reauthorization. But they never really surfaced publicly with their arguments. I think what was public was the testimony rather to the contrary that it should be reauthorized.
Mr. WATT. Okay.
Mr. CANNON. We will come back for another round. Did you want to add something to that, Ms. Payton?
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Ms. PAYTON. Well, I think that everyone here at the witness table is being reluctant to say what we all know. May I suggest that——
Mr. WATT. I am prone to go to meddling in stuff that makes people have to come to grips with that.
Ms. PAYTON. Right. Well, I think you might find it useful to read at least some excerpts of a law review article by Toni Fine, which appeared in the U.S. Law Review(see footnote 5) a little while ago, that really goes to the legislative issues of the demise of ACUS. You would find that very useful in its meticulous detail.
Mr. CANNON. Ms. Payton, could you make that article available for our review or at least give us the citation so we would like to have that be part of the record?
Ms. PAYTON. Certainly.
Mr. CANNON. Thank you. Just for the record you should be aware that the Administrative Law Subcommittee had a hearing on ACUS and reported out that language to reauthorize it when the Appropriations Committee decided not to. I have actually talked to people who were engaged in that process, both Democrat and Republicans, and they don't remember it. I think this is just—I would love to suggest the point of all that is that ACUS's work was not widely understood beyond the people that were involved, and I would hope that one of the agenda items, one of the things that the ACUS would do would be to have staff to make sure that Congress understands what they are doing.
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I don't think we have any real serious opposition to reestablishing ACUS short of that. We were talking about funding a bit ago, and in my opening statement we talked about a couple of other projects that ACUS did over a 28-year period of time and we are talking about this study.
Mr. Gray, do you think it would cost $100,000—I think it would be at least that—to do that kind of depth that we want to do? How many studies—given the kind of workload of 28 years, you are looking at 10 or fewer series of projects—how many studies should we be looking at? One per year, one every other year, five per year? Do you have any sense of how much ACUS can do and how much?
Mr. GRAY. Well, I think because it has not been around for nearly 10 years there is a backlog of things that need to be looked at. I mentioned just three of them, including in addition to the European Union project that come to my mind, and in dealing with the quality of purity, which are related topics. So perversely it might take more to get it underway and make the backlog through of things that need to be looked at, and it might then drop afterwards.
Again I look to Gary. I think he ran this. I was on the council, but I wasn't involved in daily administration, and I think you had a better answer.
Mr. CANNON. Let me just say here that I agree with your analysis. You may have a big need that may trail off, and so my sense is that when we are talking $3 million you might need to pick it up a little bit so that we authorize enough to actually do what needs to be done?
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Mr. EDLES. Yeah. Over my period, 1987 to 1995, I think we probably tackled a dozen fundamental, major projects each year. I think a couple points on the value here. One is that we—all the private sector members who participated did so pro bono. I mean, people like Boyden Gray did not get their hourly rate when they did work for the agency. They did all of that as volunteers and did a lot of hard work as volunteers. Secondly, the law professors by and large, although some of them were not law professors who served as consultants to ACUS, never really got market rates for what they were doing. There was first of all, their desire to have entree to Government agencies, which they got through the Administrative Conference, which they could not have gotten if they were just a law professor doing a study of some agency. They would not have gotten a hospitable relationship of the type that they got because of ACUS. So they were eager to do their projects through the Administrative Conference, and the Administrative Conference on the other side was quite willing to have them publish their studies in an independent law environment. So through that sort of symbiotic relationship we managed to get them at well below market rates.
And I think our projects, we used to fund them in the range of $10,000. I mean, things of that nature. I think some probably as little as $5 or $6,000. Maybe some were a little more pricey if they had to be done fast or if there was more than one consultant that needed to be used. But, you know, we were not talking in the hundreds of thousands of dollars for individual consulting projects the way the Government does normally.
[3:30 p.m.]
Mr. CANNON. Thank you.
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Professor Harter, I resonated with your personal comments about the Internet. I would like to go to you.
You talked about the Internet rulemaking and what essentially becomes ex parte communications in the open. In the last 4 days, I have had four opinion pieces or opinion page articles in the Washington Journal about me and what I am doing on immigration; and that is sort of cool, except there are at least a dozen and probably 100 Web sites out there that are saying horrible things about me. And I looked a little bit, or attempted to look, but there is no way on the face of the Earth that I could respond to all that is said by people who don't like what I stand for and do on immigration.
How do you deal in a world of information with people who want to see things—how do you deal with that? Nobody has the resources except the fanatic or the corporation that has the money to do it. So I am impressed by your thinking about that, and I have been thinking about that.
We have had issues on the Forest Service where we had 2 million comment, because they are organized. They are in environmental groups. And the other side, maybe you had 50,000 barbers who inarticulately got online and said I don't like what they are suggesting. And so you weigh those which we don't do but we do do and you come up with skewed decisions.
You obviously have thought about this a little bit. Would you mind commenting about what we do with the Internet?
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And secondly, both of you, Ms. Payton, is the structure—the current structure of ACUS sufficient to deal with these kinds of challenges?
Mr. HARTER. I am not sure I can address the technical aspects of the Internet. There is a lot of thinking going on about it; and, in fact, the Forest Service rule is one that is commonly used in talking about, well, let us have the computer screen the rule. The computers will read the 2 million rules and tell you what the various comments were.
I think what my point is, is that what really—and NSF has a program that is looking at it. American University has a program that is looking at it. There is one inside the Government that is sponsored by the White House and EPA that is looking at it. But these groups need to talk to each other, and the public at large needs to participate in some of the discussions.
I mean, I gather, from talking to people who have been deeply involved in it, this whole issue of the response, the ex parte in the open is really not looking at it. They are looking at the technology, as opposed to what is happening with—the average person can't keep up with it. So I don't have an answer to it.
Those of us who do what I do often quip: I don't do substance, I do procedure. And what is really needed, I think, is an advisory committee to talk about it and come up with guidelines on it that will take these issues into account. It strikes me that is the perfect vehicle to do it. It is built that way and comes up with the recommendations that are broadly representative, so it is the perfect vehicle to do that. When I raised the prospect of an advisory committee, I didn't get the courtesy of a response.
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Mr. CANNON. You think ACUS, the way it was set up, could handle it?
Mr. HARTER. Absolutely. They may need a new committee, but that is easy, and that takes 4 minutes.
Ms. PAYTON. Let me muse a little in a way that I don't ordinarily do on the record.
The revised ACUS needs to have both the range of interests represented that allows it to be a kind of very high-status, diverse group. On the other hand, it needs to be nimble and flexible and needs to be able to do something about all these problems; and it needs to be able to respond in a shorter time frame than having recommendations deliberated at a plenary session.
I guess the one thing I would suggest is that recommendations be allowed to be promulgated—to be made by groups that are smaller than the plenary session. Now that is how the National Academy of Sciences does it, and that is how the National Academy of Public Administration does it.
I am not taking a position on behalf of NAPA as a whole. The organization that is authorized to comment is the EOM panel, which is a subunit of NAPA; and this is the way in which we compromise between our interests in having a diverse general membership and then subject matter panels that are expert but that themselves are fairly diverse and they can respond to these things.
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I think the work of ACUS would be enormously improved if all recommendations didn't have to go through that plenary and if people who were not public members of the conference as a whole could sit on committees, and then you would have something that looked a lot more like the National Academy of Sciences.
I would say that when you start expanding that mandate—and I am speaking as an advocate—when you start expanding that mandate, I am afraid that you draw the attention of ACUS away from the small. Now, ironically, it is the small that can't get any attention paid to it unless ACUS pays attention to it. So what I would say, if you want to expand that mandate, you have to give ACUS some sort of incentive to make sure that it keeps tending after these fairly minor issues. It has to have a division that does that or something of the sort.
Mr. CANNON. Thank you. I have gone over my time, and I apologize. Mr. Watt.
Mr. WATT. I just wanted to get an appreciation of what the prior budget was before the termination and if we extrapolate out with some reasonable cost of living adjustment what that would result in.
Mr. EDLES. The budget when ACUS was abolished was $1.8 million, and it had a staff of 18 employees at that time. At the high water mark of ACUS, I think it had a budget of $2.3 million. That was the highest ever, and that supported a staff of 24 employees.
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Mr. WATT. And if you were thinking about the ideal—taking into account the backlog of things that has not been attended to since ACUS has not been in existence, first of all, for how long—how long do you think it would take to get that backlog taken care of and to what extent would the budget be ramped up for that period of time and for what period of time?
Mr. EDLES. I don't think I can answer either of them, how long it would take or how much it would cost.
I can tell you that when President Eisenhower set up the first temporary conference, he did that in 1951. That conference lasted for 2 years. So it was over, I guess, in 1955. By 1961, President Kennedy had to set up another temporary conference, which means that over a period of 4, 5 years there was again a need for additional work.
The first temporary conference came up with about 30 recommendations, as I recall reading, and the second temporary conference also with something on the order of 30 recommendations. I don't really have a real strong feeling as to, you know, how many various projects there are out there. I suspect there are scores of them that could be usefully done at this stage. And I think $10 million would probably be a wonderful figure. I think, quite candidly, something in the neighborhood of 2 to 3 million would probably be more politically acceptable.
Mr. WATT. At least for a start. At least to start.
I am just trying to create a record here with expert input, which I think, even if you are guessing, if it is an educated guess, is better than having an appropriator pull a figure out of the sky, I guess is the point I am making. So I want—let me just encourage each of you to do some creative thinking about this, whether you do it today or whether you submit it to us to supplement the record subsequent to today's hearing. I think you all are in a better position to evaluate this than either the Chairman or I would be and certainly in a better position than some appropriator pulling a figure out of the sky would be. So if you don't have a good feel for it today, I would just hope that you would give it some thought, give us your input and the basis on which you make that input.
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Mr. CANNON. Without objection, I suggest we leave the rest of the record open for 7 days so you all could submit your thoughts on funding to us.
Mr. WATT. There are some responses that they may be prepared to make today.
Mr. CANNON. Without objection, so ordered, on leaving the record open.
Ms. PAYTON. I am so nervous about the prospect of diluting the main focus of ACUS. One of the reasons why you are getting such a bipartisan, enthusiastic response is exactly that ACUS did something that was enormously important and irreplaceable, something that only ACUS could do and no one else will.
When you start expanding the role of ACUS, you may wind up in terrain that other people think they already occupy; and it is almost possible that this measure that at the moment is going forward so smoothly may encounter some rocky places.
Mr. WATT. I guess my response to that is I think it is part of our responsibility to forward some parameters with this, not just to say we reauthorize ACUS, but we reauthorize it up to a figure of x amount per year. Now whether the appropriators buy that figure or not, I think may be—if this process works as it should work, it will be in direct proportion to the—our having justified it and built a record in support of it. And I think that is much—a much better way, even if you come up with different figures, with different visions. As long as we understand what your assumptions are, we have built a record and can take that into account in our Subcommittee and full Committee's evaluation on the authorizing side, which is what our responsibility is in this process.
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Mr. HARTER. When I discovered my error in the testimony, I actually gave considerable thought—although, obviously, a lot of it is guess. Let me just sort of give food for that. And I share the concern one wants to keep it closely cabined or corralled, focused on the administrative process. My definition may be broader, but when it gets beyond that, it will encounter opposition that will be adverse.
On the other hand, I think there are a number of different parts of what the conference does that we need to be focused on. I think there are a whole series of large processes that Boyden has been talking about that would need to be undertaken, especially given the hiatus. There are a whole series of smaller ones.
In individual research areas, you get professors to do things on the cheek so long as there is not a lot of research, but research is expensive to get it done. And it strikes me in the latter days of the conference that it was having trouble coupling together enough resources to do good projects. It was getting money from other agencies. It was soliciting from the people it was going to study. It makes me a little nervous, and I think it diminished its nimbleness.
I certainly echo the idea of having the broader committees. So, from my view, I would be concerned if it really were constrained only $2 million or $2.5 million. I don't think it can really function effectively at that rate to get it done. My own view, a minimum of $5 million is necessary; and, frankly, I would go with the $10 million, with the urging that 5 is probably the minimum. If it is too scant, the quality of the studies just aren't as thorough and as good; and part of its real advantage was thorough studies and a bipartisan support of the recommendation.
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Mr. WATT. Can I ask one more question, Mr. Chairman, just a corollary to that? For a 5 or $10 million investment, what would you project the savings were that resulted from just the—what was the major initiative?
Mr. HARTER. Let me give a figure you can't put a number on. I just completed 2 years ago a negotiated rulemaking for OSHA on building steel buildings. The subpart R of OSHA's rules that had been on OSHA's docket for 20 years, they had tried multiple times to revise the rule, each time unsuccessfully. The negotiated rule worked it through. Unanimous recommendation. OSHA implemented it. The fatalities in steel erection are currently about a third of what they were then. We are talking about probably 20 deaths a year. What is the number? The regular rulemaking didn't work for 20 years.
Mr. WATT. There is method to my madness here, because this is the record building stage. Because I think it is our obligation to document the best we can the cost benefit of this reauthorization, and so I am being a little bit more meticulous than I would normally be because of that. I think we need to anticipate some of these issues, and if you all can submit something to us having thought about it in some more detail—I am not looking for you to be uniform. There is benefit I think in not being uniform. We are not asking you to get together as a group and come up with a group figure or a group vision or a group benefit, cost-benefit analysis, but this is the kind of information that I think would be helpful to have in the record to document not only the cost and what the reasonable costs should be to accomplish whatever the vision is that could differ from panelist to panelist but to document also the benefit of that cost; and that is, I think, what we don't do nearly enough of in this body.
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I will yield back.
Mr. CANNON. I would like to go through some notes and make some statements; and if you want to take notes, I will leave it open for you to comment on that.
I appreciate, Mr. Gray, very much your statements. I think it extraordinarily important that we do this so that we stay ahead of the rest of the world. For me, that is very, very important. We have a world in which we can be transparent instead of opaque. We may be more transparent than Europe, but we want to be more transparent. I am a big fan of John Graham, and I appreciate your comments on him. This Subommittee is actually focusing on helping out there.
Mr. Edles, you talked about—you made a great record. I really appreciate that. And you talked about the institutional memory. I just think that is remarkably important. We can put this back together with many people who are now and were in the prime of their lives that know what happened and know what we can do. And one of the things I hope we can do here is go from taking the negotiated regulation or rulemaking model to a negotiated permitting model.
We are in a position where we have had massive forest fires, and we can't deal with that in Congress. We fiddled around for 2 or 3 years now on the Healthy Forest Initiative, and we still can't get a consensus out of this body. We will never get a consensus out of this body. And we are not going to cut trees until we come up with a process that a rulemaking agency can do, and that is in part rulemaking but I think in larger part it is going to be a negotiated process for permitting—permitting the cutting of trees, permitting of drilling the wells and things like that so we that can come up with a process that actually works.
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The problem with it, of course—and, Ms. Payton, you talked about these things don't work until something major goes wrong. And we have some major problems. In the case of forests, for instance, you have a forest fire because we didn't tend to the forests because we could issue permits for cutting trees in a way that everybody agrees. There is a way to make sense. It is just that no agency is going to come up with a permit that doesn't allow for litigation to stop the cutting of trees; and if it is not a healthy forest, we end up with massive forest fires. We lose the trees, lose the watershed, lose the endangered species. We are letting extreme conditions drive major issues that, when you get settled into a discussion with reasonable people, you come to conclusions.
But it is not the reasonable people that bring the lawsuits. It is the people that have an agenda that is outside and choose their judge and all that because we abdicated. That is, America got rid of acres and acres. So negotiating the permitting I think is one of the incredibly important things that we are doing.
Many things have been said today, and we appreciate your comments. Are there any comments on what I have said or——
Well, then I will yield back the time I have. Mr. Flake, do you have any questions?
Mr. FLAKE. No questions.
Mr. CANNON. Thank you for your attendance here. Your being here I think has created a record that is remarkable. More importantly, it will draw attention to people who need to understand how important this is and give us a boost in moving this legislation through and getting not only the reauthorization but funding from the appropriators. We appreciate your presence here today and thank you.
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The hearing is adjourned.
[Whereupon, at 3:55 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
RESPONSE TO POST-HEARING QUESTIONS FROM C. BOYDEN GRAY
RESPONSE TO POST-HEARING QUESTIONS FROM GARY J. EDLES
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RESPONSE TO POST-HEARING QUESTIONS FROM SALLYANNE PAYTON
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RESPONSE TO POST-HEARING QUESTIONS FROM PHILIP J. HARTER
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LETTER FROM MICHAEL HERZ AND DAVID RUDENSTINE
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(Footnote 1 return)
This observation was a principal motivation for the creation of ACUS as a permanent body. Here is what Judge E. Barrett Prettyman wrote to President Kennedy after having led two committees studying the possibility of creating the Conference:
(Footnote 2 return)
Id. at 652.
(Footnote 3 return)
Administrative Conference of the United States, Recommendation 91–3: The Social Security Representative Payee Program, 1991 ACUS 17.
(Footnote 4 return)
5 U.S.C. §594 provides:
(Footnote 5 return)
The correct reference to the article cited by Professor Payton in her testimony is as follows: Toni M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the United States, 30 Ariz. St. L. J. 19 (1998).