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The original documents are located in Box 7, folder "Congressional - Legislation General
(2)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 7 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
Cong
THE WHITE HOUSE
WASHINGTON
July 21, 1975
MEMORANDUM FOR:
PHIL BUCHEN
THRU:
MAX L. FRIEDERSDORF m .6.
VERN LOEN VC
FROM:
CHARLES LEPPERT, JR. Cogn
SUBJECT:
H.R. 8617 - Federal Employees' Political
Activities Act of 1975.
Attached per your request is a copy of H.R. 8617, the Federal Employees'
Political Activities Act of 1975.
Please note that page 2, line 9 defines "employee" to include the "President" and
the "Vice President."
FORD LIBRARY
NOT FOR RELEASE
H.R. 8617
THE FEDERAL EMPLOYEES' POLITICAL ACTIVITIES ACT OF 1975
OPENING STATEMENT BY MR. CLAY
MR. CHAIRMAN, I move that the Committee take up and consider
the bill, H.R. 8617, and that it be open for amendments at any
point.
MR. CHAIRMAN, H.R. 8617, the Federal Employees' Political
Activities Act of 1975, was reported by the Subcommittee on
Employee Political Rights and Intergovernmental Programs as a
"clean bill" on July 10, 1975.
Earlier, the Subcommittee conducted eleven days of hearings
and received testimony from over one hundred witnesses in Washington
and six other cities across the nation. Testimony in support of
H.R. 3000, which I introduced earlier this year with the
co-sponsorship of 64 of my colleagues, was overwhelmingly in support
of this legislation. There were however, a number of recommendations
for the strengthening of H.R. 3000 and related legislation which
the Subcommittee has incorporated into the "clean bill", H.R. 8617.
MR. CHAIRMAN, the Hatch Act was enacted in an effort to protect
federal employees from improper involvement in partisan political
activities. Previous studies, public hearings, and staff surveys
reveal no evidence that voluntary political activity in any way
erodes the merit system or operates against the public interest.
Yet, existing law, which actually consists of over 3000 administra-
tive regulations, is vague, overly broad and infringes upon the
rights of every American to participate fully in the political life
of this nation.
H.R. 8617, takes these realities into consideration. It
pro- FORD VIBRAR,
hibits those involuntary political activities which tend to erode
-2-
public confidence in the integrity of the merit system. It estab-
lishes an independent Board to adjudicate alleged violations. It
gives the Commission strengthened authority for investigating
alleged violations. It provides due process and judicial review
for federal employees.
The major provisions of the Subcommittee bill follow:
*States that federal employees are encouraged to exercise
their right of voluntary political participation.
*Prohibits the use of official authority, influence, or
coercion with the right to vote, not to vote or to other-
wise engage in political activity.
*Prohibits use of funds to influence votes; solicitation of
political contributions by superior officials; and making
political contributions in government rooms or buildings.
*Prohibits political activity while on duty, in federal
buildings, or in uniform.
*Provides leave for candidates for elective office.
*Establishes an independent Board on Political Activities
of Government Personnel whose function is to hear and
adjudicate alleged violations of law.
*Authorizes the Civil Service Commission to investigate
alleged violations of law and provides for subpena
authority, due process, and judicial review of adverse
decisions.
*Subjects violators of law to removal, suspension or
lesser penalties at the discretion of the Board.
*Requires that the Civil Service Commission conduct a
program for informing federal employees of their rights
of political participation and report annually to the
Congress on its implementation.
MR. CHAIRMAN, this bill represents a significant improvement
over earlier legislative proposals which aimed to achieve full
UNDRO
complete political suffrage for federal employees. The Subcommittee
LIBRARY
worked long and hard in forging this bill. It incorporates many of
-3-
the suggestions of not only its supporters but also the concerns of
those relatively few who withheld their endorsement. The bill is
comprehensive. The bill is specific. The bill is fair. I urge
your support in ensuring the prompt and speedy enactment of this
landmark legislation.
FORD & LIBRARY GERALD
94TH CONGRESS
1ST SESSION
H. R. 8617
IN THE HOUSE OF REPRESENTATIVES
July 14, 1975
Mr. CLAY (for himself. Mrs. SPELLMAN, Mr. SOLARZ, Mr. CHARLES H. WILSON
of California. Mr. HARRIS, and Mrs. SCHROEDER) introduced the following
bill; which was referred to the Committee on Post Office and Civil Service
A
BILL
To restore to Federal civilian and Postal Service employees
their rights to participate voluntarily, as private citizens,
in the political processes of the Nation, to protect such em-
ployees from improper political solicitations, and for other
purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Federal Employees'
4 Political Activities Act of 1975".
5
SEC. 2. (a) Subchapter III of chapter 73 of title 5,
6 United States Code, is amended to read as follows:
ALD ALD FORD LIBRAR
I
2
1
"SUBCHAPTER IHI-POLITICAL ACTIVITIES
2
"§ 7321. Political participation
3
"It is the policy of the Congress that employees should
4 be encouraged to fully exercise, to the extent not expressly
5 prohibited by law, their rights of voluntary participation in
6
the political processes of our Nation.
7
"§ 7322. Definitions
8
"For the purpose of this subchapter-
9
(1) 'employee' means any individual, including
10
the President and the Vice President, employed or
11
holding office in-
12
" (A) an Executive agency,
13
" (B) the government of the District of
14
Columbia,
15
" (C) the competitive service, or
16
" (D) the United States Postal Service or the
17
Postal Rate Commission;
18
but does not include a member of the uniformed services;
19
" (2) 'candidate' means any individual who seeks
20
nomination for election, or election, to any elective office,
21
whether or not such individual is elected, and, for the
22
purpose of this paragraph, an individual shall be deemed
23
to seek nomination for election, or election, to an elective
24
office, if such individual has-
25
" (A) taken the action required to qualify
for FORD VIBRAR,
26
nomination for election, or election, or
3
1
" (B) received political contributions or made
2
expenditures, or has given consent for any other
3
person to receive political contributions or make ex-
4
penditures, with a view to bringing about such indi-
5
vidual's nomination for election, or election, to such
6
office;
7
" (3) 'political contribution'-
8
" (A) means a gift, subscription, loan, advance,
9
or deposit of money or anything of value, made for
10
the purpose of influencing the nomination for elec-
11
tion, or election, of any individual to elective office
12
or for the purpose of otherwise influencing the re-
13
sults of any election;
14
(B) includes a contract, promise, or agree-
15
ment, express or implied, whether or not legally
16
enforceable, to make a political contribution for any
17
such purpose; and
18
" (C) includes the payment by any person,
19
other than a candidate or a political organization,
20
of compensation for the personal services of another
21
person which are rendered to such candidate or po-
22
litical organization without charge for any such
23
purpose;
24
" (4) 'superior' means an employee (other than the
FORD i LIBRARY GERALD
25
President or the Vice President) who exercises super-
4
1
vision of, or control or administrative direction over,
2
another employee;
3
" (5) 'elective office' means any elective public
4
office and any elective office of any political party or
5
affiliated organization; and
6
" (6) 'Board' means the Board on Political Activi-
7
ties of Federal Employees established under section 7327
8
of this title.
9
"§ 7323. Use of official authority or influence; prohibition
10
" (a) An employee may not directly or indirectly use or
11 attempt to use the official authority or influence of such em-
12
ployee for the purpose of-
13
" (1) interfering with or affecting the result of any
14
election; or
15
" (2) intimidating, threatening, coercing, command-
16
ing, influencing, or attempting to intimidate, threaten,
17
coerce, command, or influence-
18
" (A) any individual for the purpose of inter-
19
fering with the right of any individual to vote as
20
such individual may choose, or of causing any indi-
21
vidual to vote, or not to vote, for any candidate or
22
measure;
23
" (B) any person to give or withhold any politi
24
cal contribution; or
BERALD FORD LIBRARY
5
1
" (C) any person to engage, or not to engage,
2
in any form of political activity whether or not such
3
activity is prohibited by law.
4
" (b) For purposes of subsection (a) of this section, 'use
5 of official authority or influence' includes, but is not limited
6 to, promising to confer or conferring any benefit (such
7 as appointment, promotion, compensation, grant, contract,
8 license, or ruling), or effecting or threatening to effect any
9 reprisal (such as deprivation of appointment, promotion,
10 compensation, grant, contract, license, or ruling).
11 "§ 7324. Solicitation; prohibition
12
"An employee may not-
13
" (1) give or offer to give a political contribution
14
to any individual either to vote or refrain from voting,
15
or to vote for or against any candidate or measure, in
16
any election;
17
(2) solicit, accept, or receive a political contribu-
18
tion to vote or refrain from voting, or to vote for or
19
against any candidate or measure, in any election;
20
(3) knowingly give or hand over a political con-
21
tribution to a superior of such employee; or
22
'(4) knowingly solicit, accept, or receive, or be in
23
any manner concerned with soliciting, accepting, or
24
receiving, a political contribution-
25
"(A) from another employee (or a member
FURDO LIBRARY
6
1
of another employee's immediate family) with re-
2
spect to whom such employee is a superior; or
3
" (B) in any room or building occupied in the
4
discharge of official duties by-
5
" (i) an individual employed or holding
6
office in the Government of the United States, in
7
the government of the District of Columbia,
S
or in any agency or instrumentality of the
9
foregoing; or
10
" (ii) an individual receiving any salary or
11
compensation for services from money derived
12
from the Treasury of the United States.
13
"§ 7325. Political activities on duty, etc.; prohibition
14
"An employee may not engage in political activity-
15
" (1) while such employee is on duty,
16
" (2) in any room or building occupied in the dis-
17
charge of official duties by an individual employed or
18
holding office in the Government of the United States,
19
in the government of the District of Colambia, or in
20
any agency or instrumentality of the foregoing, or
21
" (3) while wearing a uniform or official insignia
22
identifying the office or position of such employee.
is
FORD
23
"§ 7326. Leave for candidates for elective office
24
" '(a) An employee who is a candidate for elective
25 office shall, upon the request of such employee, be granted
7
1 leave without pay for the purpose of allowing such employee
2 to engage in activities relating to such candidacy.
3
(b) Notwithstanding section 6302 (d) of this title,
4 an employee who is a candidate for elective office shall, upon
5 the request of such employee, be granted accrued annual
6 leave. Such leave shall be in addition to leave without pay
7 to which such employee may be entitled under subsection
8 (a) of this section.
9 "§ 7327. Board on Political Activities of Federal Employees
10
" (a) There is established a board to be known as the
11 Board on Political Activities of Federal Employees. It shall
12 be the function of the Board to hear and decide cases regard-
13 ing violations of section 7323, 8324, and 7325 of this title.
14
" (b) The Board shall be composed of 3 members—
15
" (1) one member of which shall be appointed, with
16
the confirmation of a majority of both Houses of the
17
Congress, by the President and who shall serve as Chair-
18
man of the Board;
19
" (2) one member of which shall be appointed, with
20
the confirmation of a majority of both Houses of the
21
Congress, by the Speaker of the House of Representa-
22
tives, after consultation with the majority leader of the
23
House and the minority leader of the House; and
24
" (3) one member of which shall be appointed, with
25
the confirmation of a majority of both House of the
8
1
Congress, by the President pro tempore of the Senate,
2
after consultation with the majority leader of the Senate
3
and the minority leader of the Senate.
4
(c) Members of the Board shall be chosen on the basis
5 of their professional qualifications from among individuals
6 who, at the time of their appointment, are employees (as
7
defined under section 7322 (1) of this title).
8
" (d) (1) Members of the Board shall serve a term of
9 3 years, except that of the members first appointed-
10
" (A) the Chairman shall be appointed for a term
11
of 3 years,
12
" (B) the member appointed under subsection (b)
13
(2) of this section shall be appointed for a term of 2
14
years, and
15
" (C) the member appointed under subsection (b)
16
(3) of this section shall be appointed for a term of 1
17
year.
18 An individual appointed to fill a vacancy occurring other
19 than by the expiration of a term of office shall be appointed
20 only for the unexpired term of the member such individual
21 will succeed. Any vacancy occurring in the membership of
22 the Board shall be filled in the same manner as in the case
is
FORD
23 of the original appointment.
GIVE
24
" (2) If an employee who was appointed as a member
LIBRARY
25 of the Board is separated from service as an employee he
9
1 may not continue as a member of the Board after the 60-
2 day period beginning on the date SO separated.
3
" (e) The Board shall meet at the call of the Chairman.
4
" (f) All decisions of the Board with respect to the
5 exércise of its duties and powers under the provisions of this
6 subchapter shall be made by a majority vote of the Board.
7
" (g) A member of the Board may not delegate to any
8 person his vote nor, except as expressly provided by this
9 subchapter, may any decisionmaking authority vested in the
10 Board by the provisions of this subchapter be delegated to
11 any member or person.
12
" (h) The Board shall prepare and publish in the Fed-
13 eral Register written rules for the conduct of its activities.
14 shall have an official seal which shall be judicially noticed,
15 and shall have its office in or near the District of Columbia
16
(but it may meet or exercise any of its powers anywhere
17 in the United States)
18
" (i) The Civil Service Commission shall provide such
19 clerical and professional personnel, and administrative sup-
20 port, as the Chairman of the Board considers appropriate
21 and necessary to carry out the Board's functions under this
22 subchapter. Such personnel shall be responsible to the Chair-
23 man of the Board.
24
" (j) The Administrator of the General Services Ad-
BERALD FORD LIBRARY
25 ministration shall furnish the Board suitable office space ap-
H.R. 8617-2
10
1 propriately furnished and equipped, as determined by the
2 Administrator.
3
" (k) (1) Members of the Board shall receive no addi-
4 tional pay on account of their service on the Board.
5 V
" (2) Members shall be entitled to leave without loss of
6 or reduction in pay, leave, or performance or efficiency rating
7 during a period of absence while in the actual performance
S of daties vested in the Board.
9 "§ 7328. Investigation; procedures; hearing
10
" (a) The Civil Service Commission shall investigate
11 reports and allegations of any activity prohibited by section
12 7323, 7324, or 7325 of this title.
13
" (b) As a part of the investigation of the activities of an
14 employee, the Commission shall provide such employee an
15 opportunity to make a statement concerning the matters
16 under investigation and to support such statement with any
17 documents the employee wishes to submit. An employee of
18 the Commission lawfully assigned to investigate a violation of
19 this subchapter may administer an oath to a witness attend-
20 ing to testify or depose in the course of the investigation.
21
" (c) (1) If it appears to the Commission after investi-
22 gation that a violation of section 7323, 7324, or 7825 of this
23 title has not occurred, it shall SO notify the employee and the
24 agency in which the employee is employed.
it
FORD
GERALD
LIBRARY
11
1
" (2) Except as provided in paragraph (3) of this sub-
2 section, if it appears to the Commission after investigation
3 that a violation of section 7323, 7324, or 7325 of this title
4 has occurred, the Commission shall submit to the Board and
5 serve upon the employee a notice by certified mail, return
6 receipt requested (or if notice cannot be served in such man-
7 ner, then by any method calculated to reasonably apprise
8 the employee) -
9
" (A) setting forth specifically and in detail the
10
charges of alleged prohibited activity;
11
" (B) advising the employee of the penalties pro-
12
vided under section 7329 of this title;
13
" (C) affording a period of not less than 30 days
14
within which the employee may file with the Board a
15
written answer to the charges in the manner prescribed
16
by rules issued by the Board; and
17
(D) advising the employee that unless the em-
18
ployee answers the charges, in writing, within the time
19
allowed therefor, the Board is authorized to treat such
20
failure as an admission by the employee of the charges
21
set forth in the notice and a waiver by the employee of
22
the right to a hearing on the charges.
23
" (3) If it appears to the Commission after investiga
FORD
21
tion that a violation of section 7323, 7324, or 7325 of this
25 title has been committed by-
12
1
is (A) the Vice President;
2
" (B) an employee appointed by the President by
3
and with the advice and consent of the Senate;
4
" (C) an employee whose appointment is expressly
5
required by statute to be made by the President;
6
" (D) the Mayor of the District of Columbia; or
7
" (E) the Chairman or a member of the Council of
S
the District of Columbia, as established by the District of
9
Columbia Self-Government and Governmental Reor-
10
ganization Act;
11 the Commission shall refer the case to the Attorney General
12 for prosecution under title 18, and shall report the nature and
13 details of the violation to the President and to the Con-
14 gress.
15
" (d) (1) If a written answer is not duly filed within
16 the time allowed therefor, the Board may, without further
17 proceedings, issue its final decision and order.
18
" (2) If an answer is duly filed, the charges shall be
19 determined by the Board on the record after a hearing
20 conducted by a hearing examiner appointed under section
21 3105 of this title, and, except as otherwise expressly pro-
22 vided under this subchapter, in accordance with the require
23 ments of subchapter II of chapter 5 of this title, notwith
LIBRARY
24 standing any exception therein for matters involving the
25 tenure of an employee. The hearing shall be commenced
13
1 within 30 days after the answer is filed with the Board
2 and shall be conducted without unreasonable delay. As soon
3 as practicable after the conclusion of the hearing, the exam-
4 iner shall serve upon the Board, the Commission, and the
5 employee such examiner's recommended decision with notice
6 to the Commission and the employee of opportunity to file
7 with the Board, within 30 days after the date of such notice,
8 exceptions to the recommended decision. The Board shall
9 issue its final decision and order in the proceeding no later
10 than 60 days after the date the recommended decision is
11 served. The employee shall not be removed from active duty
12 status by reason of the alleged violation of this subchapter
13 at any time before the effective date specified by the Board
14 in its final order.
15
" (e) (1) At any stage of a proceeding or investigation
16 under this subchapter, the Board may, at the written request
17 of the Commission or the employee, require by subpena the
18 attendance and testimony of witnesses and the production
19 of documentary or other evidence relating to the proceeding
20 or investigation at any designated place, from any place in
21 the United States or any territory or possession thereof, the
22 Commonwealth of Puerto Rico, or the District of Columbia.
23 Any member of the Board may issue subpenas and members
24 of the Board and any hearing examiner authorized by the
GERALE
25 Board may administer oaths, examine witnesses, and receive
14
1 evidence. In the case of contumacy or failure to obey a sub-
2 pena, the United States district court for the judicial district
3 in which the person to whom the subpena is addressed
4 resides or is served may, upon application by the Board,
5 7 issue an order requiring such person to appear at any desig-
6 nated place to testify or to produce documentary or other
7 evidence. Any failure to obey the order of the court may be
S punished by the court as a contempt thereof.
9
" (2) The Board (or a member designated by the
10 Board) may order the taking of depositions at any stage of
11 a proceeding or investigation under this subchapter. Deposi-
12 tions shall be taken before an individual designated by the
13 Board and having the power to administer oaths. Testimony
14 shall be reduced to writing by or under the direction of the
15 individual taking the deposition and shall be subscribed by
16 the deponent.
17
(3) An employee may not be excused from attending
18 and testifying or from producing documentary or other evi-
19 dence in obedience to a subpena of the Board on the ground
20 that the testimony or evidence required of the employee
21 may tend to incriminate the employee or subject the em-
FORD
22 ployee to a penalty or forfeiture for or on account of any
GERALD
LIBRARY
23 transaction, matter, or thing concerning which the employee
24 is compelled to testify or produce evidence. No employee
25 shall be prosecuted or subjected to any penalty or forfeiture
15
1 for or on account of any transaction, matter, or thing con-
2 cerning which the employee is compelled, after having
3 claimed the privilege against self-incrimination, to testify
4 or produce evidence, nor shall testimony or evidence SO com-
5 pelled be used as evidence in any criminal proceeding against
6 the employee in any court, except that no employee shall
7 be exempt from prosecution and punishment for perjury
S committed in so testifying.
9
" (f) An employee upon whom a penalty is imposed
10 by an order of the Board under subsection (d) of this section
11 may, within 30 days after the date on which the order was
12 issued, institute an action for judicial review of the Board's
13 order in the United States District Court for the District of
14 Columbia or in the United States district court for the judicial
15 district in which the employee resides or is employed. The
16 institution of an action for judicial review shall not operate
17 as a stay of the Board's order, unless the court specifically
18 orders such stay. A copy of the summons and complaint
19 shall be served as otherwise prescribed by law and, in
20 addition, upon the Board. Thereupon the Board shall certify
21 and file with the court the record upon which the Board's
22 order was based. If application is made to the court for
23 leave to adduce additional evidence, and it is shown to the
24 satisfaction of the court that the additional evidence may
25 materially affect the result of the proceeding and that there
16
1 were reasonable grounds for failure to adduce the evidence
2 at the hearing conducted under subsection (d) (2) of this
3 section, the court may direct that the additional evidence be
4 taken before the Board in the manner and on the terms and
5 conditions fixed by the court. The Board may modify its
6 findings of fact or order, in the light of the additional evi-
7 dence, and shall file with the court such modified findings or
8 order. The Board's findings of fact, if supported by substan-
9 tial evidence, shall be conclusive. The court shall affirm the
10 Board's order if it determines that it is in accordance with
11 law. If the court determines that the order is not in ac-
12 cordance with law-
13
"(1) it shall remand the proceeding to the Board
14
with directions either to enter an order determined by
15
the court to be lawful or to take such further proceedings
16
as, in the opinion of the court, are required; and
17
(2) it may assess against the United States rea-
18
sonable attorney fees and other litigation costs reason-
19
ably incurred by the employee.
20
(g) The Commission or the Board, in its discretion,
21 may proceed with any investigation or proceeding instituted
22 under this subchapter notwithstanding that the Commission
23 or the head of an employing agency or department has re-
24 ported the alleged violation to the Attorney General as re-
25 quired by section 535 of title 28.
17
1 "§ 7329. Penalties
2
(a) Subject to and in accordance with section 7328
3 of this title, an employee who is found to have violated
4 any provision of section 7323, 7324, or 7325 of this title
5 shall, upon a final order of the Board, be-
6
" (1) removed from such employee's position, in
7
which event that employee may not thereafter hold any
S
position (other than an elected position) as an em-
9
ployee (as defined in section 7322 (1) of this title) for
10
such period as the Board may prescribe;
11
'(2) suspended without pay from such employee's
12
position for such period as the Board may prescribe; or
13
(3) disciplined in such other manner as the Board
14
shall deem appropriate.
15
" (b) The Board shall notify the Commission, the em-
16 ployee, and the employing agency of any penalty it has
17 imposed under this section. The employing agency shall cer-
18 tify to the Board the measures undertaken to implement the
19 penalty.
20 "§ 7330. Education program; reports
21
" (a) The Commission shall establish and conduct a
FORD
22 continuing program to inform all employees of their rights
GERALD
LIBRARY
23 of political participation and to educate employees with
24 respect to those political activities which are prohibited.
18
1
" (b) On or before March 30 of each calendar year, the
2 Commission shall submit a report covering the preceding
3 calendar year to the Speaker of the House of Representa-
4 tives and the President pro tempore of the Senate for referral
5 to the appropriate committees of the Congress. The report
6 shall include-
7
"(1) the number of investigations conducted under
8
section 7328 of this title and the results of such investi-
9
gations;
10
"(2) the name and position or title of each indivi-
11
dual involved, and the funds expended by the Commis-
12
sion, in carrying out the program required under subsec-
13
tion (a) of this section; and
14
" (3) an evaluation which describes—
15
"(A) the manner in which such program is
16
being carried out; and
17
" (B) the effectiveness of such program in
18
carrying out the purposes set forth in subsection
19
(a) of this section.
20
"§ 7331. Regulations
21
"The Civil Service Commission shall prescribe such
1920
22
rules and regulations as may be necessary to carry out its
23
responsibilities under this subchapter."
LIBRARY
24
(b) (1) Sections 8332 (k) (1), 8706 (e), and 8906
25
(e) (2) of title 5, United States Code, are each amended
26 by inserting immediately after "who enters on" the follow-
19
1 ing: "leave without pay granted under section 7326 (a)
2 of this title, or who enters on".
3
(2) Section 3302 of title 5, United States Code, is
4 amended by striking out "7153, 7321, and 7322" and in-
5 serting in lieu thereof "and 7153".
6
(3) Section 1308 (a) of title 5, United States Code,
7 is amended-
S
(A) by inserting "and" at the end of paragraph
9
(2) ;
10
(B) by striking out paragraph (3) ; and
11
(C) by redesignating paragraph (+) as paragraph
12
(3)
13
(4) The second sentence of section 8332 (k) (1) of title
14
5, United States Code, is amended by striking out "second"
15
and inserting "last" in lieu thereof.
16
(5) The section analysis for subchapter III of chapter
17
73 of title 5, United States Code, is amended to read as
18
follows:
"SUBCHAPTER III-POLITICAL ACTIVITIES
"Sec.
"7321. Political participation.
3RD
"7322. Definitions.
"7323. Use of official authority or influence; prohibition.
"7324. Solicitation: prohibition.
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"7325. Political activities on duty, etc.; prohibition.
"7326. Leave for candidates for elective office.
"7327. Board on Political Activities of Federal Employees.
"7328. Investigation: procedures; hearing.
"7329. Penalties.
"7330. Education program; reports.
"7331. Regulations.".
20
1
(c) Sections 602 and 607 of title 18, United States
2 Code, relating to solicitations and making of political con-
3 tributions, are each amended by adding at the end thereof the
4 following new sentence: "This section does not apply to any
5 activity of an employee as defined in section 7322 (1) of
6 title 5 unless such activity is prohibited by section 7324 of
7 that title.".
8
(d) Section 6 of the Voting Rights Act of 1965 (42
9 U.S.C. 1973d) is amended by striking out "the provisions of
10 section 9 of the Act of August 2, 1939, as amended (5
11 U.S.C. 118i), prohibiting partisan political activity" and by
12 inserting in lieu thereof "the provisions of subchapter III
13 of chapter 73 of title 5, United States Code, relating to
14 political activities".
15
(e) Sections 103 (a) (4) (D) and 203 (a) (4) (D) of
16 the District of Columbia Public Education Act are each
17 amended by striking out "sections 7324 through 7327 of
18 title 5" and inserting in lieu thereof "section 7325 of title 5".
19
(f) The amendments made by this section shall take
20 effect on the ninetieth day after the date of the enactment
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21 of this Act.
Cong.
THE WHITE HOUSE
WASHINGTON
August 5, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
DUDLEY CHAPMAN
DC
BARRY ROTH
BR
SUBJECT:
Assertion of Executive Privilege
for Departmental Position on
Legislation
The Administration has opposed H.R. 5493 which would require
packers or other persons buying livestock or poultry to provide
adequate bonding or other security to pay the producers of such
commodities. Agriculture's proposed letter to the Chairman
of the House Agriculture Committee, which it submitted to OMB
for clearance, would have favored the bill (Tab A). Justice, in
a letter by Assistant Attorney General Michael M. Uhlmann
addressed to Jim Lynn, gave its reasons for disagreeing with
Agriculture (Tab B). After the President had decided in favor
of the Justice view, Bruce Wilson of the Antitrust Division testified
before the House Agriculture Committee and, in the course of that
testimony, furnished a copy of Uhlmann's letter to the Committee.
The Justice/Administration position received a hostile reception
from the Committee which has asked for a copy of the original
Department of Agriculture's proposed letter in support of the bill.
The Justice letter specifically refers to the Agriculture letter both
in its arguments and for facts not repeated by Justice. OMB has
asked whether the Department of Agriculture's proposed reply
should be withheld on grounds of executive privilege (Tab C).
On the merits, the Agriculture letter, although framed as a
communication to the House Committee on Agriculture, is an
internal recommendation that was not accepted, and is, therefore,
covered by executive privilege.
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LIBRARY
-2-
Two factors weigh against asserting privilege in this instance:
(1) The fact that Justice has already released its own internal
recommendation in support of the Administration's position would
make our position inconsistent if we assert the privilege as to
Agriculture but not Justice. Since the Justice letter was not pre-
pared as a communication to the Committee, but as an internal
recommendation to OMB, it is clearly a privileged document.
Justice felt warranted in releasing it because its position had
been embraced by the Administration and it appears to have been
either an oversight or a shortage of time that resulted in submission
of a document in this form rather than in a more conventional
departmental comment on legislation.
(2) While I am told by Bill Nichols that there is not any notable
precedent for releasing unsuccessful recommendations submitted
to OMB for clearance, there is precedent for authorizing depart-
ments and agencies whose recommendations have been rejected
to state their views to a Congressional Committee. This is
normally done when there are severe differences within the
Administration, and that appears to be the case here.
Two ways of handling the request would be:
(A) Refuse the request on grounds of privilege; or
(B) Comply with the request on the ground that the
Administration has effectively waived privilege on this subject.
We recommend Option B for the reasons stated above.
Approve Option A
Approve Option B
See Me
E
WIRH ULTI
DEPARTMENT OF AGRICULTURE
OFFICE OF THE SECRETARY
WASHINGTON. D. C. 20250
Honorable Thomas S. Foley
Chairman, Committee on Agriculture
House of Representatives
Dear Mr. Chairman:
This is in reply to your letter of March 26, 1975, requesting a report of
the Department's recommendations on H.R. 5493, a bill "To amend the Packers
and Stockyards Act of 1921, as amended, to require packers or other persons
buying or acquiring livestock or poultry to provide adequate bonding or other
security to pay the producers for such commodities." Since this bill includes
the amendments to the Act proposed in H.R. 4070, on which you have requested
a report, this report will be equally applicable to that bill, as well as to
H.R. 5827, an identical bill to H.R. 5493.
The Department favors enactment of the bill but recommends that the proposals
to make the insolvency and reparation provisions applicable to packers be
limited to livestock and poultry matters. Suggestions to accomplish this
revision are set out in Attachment 1.
Briefly, the bill seeks to accomplish the primary objective of increasing
financial protection to livestock producers through (1) requiring the bonding
of packers for the payment of livestock purchased, (2) providing a temporary
injunction procedure through the Federal courts so as to prevent irreparable
damage to producers by enjoining persons from operating, or operating except
under such conditions as the court may prescribe, until administrative action
by the Department can be resolved, and (3) upgrading the priority of accounts
payable for livestock owned by persons selling to packers in the event of
bankruptcy.
The bill would also strengthen the Act and the Secretary's ability to carry
out this objective through (1) clarifying and extending the definitions of
"packer", (2) eliminating the requirement of proving that a particular vio-
lation occurred "in commerce" while retaining the requirement of proving
that the respondent was subject to the Act including proving that he was
engaged in business "in commerce", (3) extending the Department's authority
in insolvency matters to order packers to cease and desist from operating
while insolvent, or operating while insolvent except under conditions which
the Secretary may prescribe to protect producers, (4) extending the reparation
procedure to packers, and (5) strengthening the reparation enforcement pro-
cedures to assure payment of awards.
ABRARY
,ble Thomas S. Foley
2
ed on current forecasts, it is believed that the cost of enacting this
gislation would total approximately $800,000. This amount would be
reduced approximately $225,000 if the suggestions of the Department to
limit the solvency and reparation provisions to matters relating to live-
stock and poultry are adopted.
These estimates include all expenses to be incurred for salaries, travel,
and equipment for approximately 40 employees or under the suggested changes,
approximately 29 employees. No changes, other than required salary and
travel adjustments, would be anticipated during the next five years. A
cost breakdown by sections of the bill is set out in Attachment 2.
The Office of Management and Budget advises that there is no objection to
the presentation of this report from the standpoint of the Administration's
program.
Sincerely,
Attachments 3
FORD in LIBRARY 033470
CLUICEL
UNITED STATES DEPARTMENT OF AGRICULTURE
(now)
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20250
OFFICE OF MANAGEMENT AND FINANCE
May 9, 1975
EFA
Director, Office of Management and Budget
Peterson
Executive Office of the President
ATTENTION: Assistant Director for
Legislative Reference
Washington, D. C.
SUBJECT: 94th Congress, Proposed report on H.R. 5493
also and HR8070
Enclosed, for advise pursuant to Budget Circular A-19, are six
Hp
copies of subject bill.
5827
By direction of the Secretary.
Sincerely,
JC
E/Bekrine
Director of Finance
Enclosures 6
FORD is LIBRARY DERALD
Mashington, D.C. 20530
JUL 8 1975
Honorable James T. Lynn
Director, Office of Management
Petersa
and Budget
Washington, D.C. 20503
Dear Mr. Lynn:
This is in response to your request for the views
of the Department of Justice on the Department of
Agriculture's report on H.R. 4070, H.R. 5493 and H.R.
5827 (94th Cong., 1st Sess.). The bills deal with the
bonding and buying of livestock. H.R. 5493 and H.R.
5827 are identical and all provisions of H.R. 4070 are
included in the other bills. As was done in the Depart-
ment of Agriculture's analysis, references made in this
report will be to the sections of H.R. 5493.
In the attachments to its letter the Department of
Agriculture summarizes each section of the bill and
comments in some detail on how the present regulatory
scheme would be changed. Rather than needlessly repeat
Agriculture's analysis, this report will focus specifical-
ly on those points on which the views of the Department
of Justice may differ from those of Agriculture.
While few would deny that government regulation of
industry is sometimes necessary, it must be realized that
the imposition of additional costs and restrictions on
competition that result from regulation will frequently
lead to higher prices and sub-optimal allocations of scarce
resources. In recent years it has become increasingly clear
that costs of inefficient operations engendered by regulation
of some of this nation's major industries have not always
been offset by the advantages of regulation. At a time when
serious consideration is being given to proposals for partial
deregulation of some of the regulated industries, a proposal
that would increase the level of regulation in the meat
industry deserves very close scrutiny.
DRD
LIBRARY
primary objective of the bill is to provide
financial protection to livestock producers.
this may be a laudable objective, the Department
ictions this area. The danger of debtors defaulting
whether there is a pressing need for Federal
in their obligations is a risk that is faced in all types
of business. Where a seller sees that there is a substan-
tial danger that a buyer may not be able to meet his
obligations the seller certainly has methods available to
protect his interests - including refusing to extend
credit. Other than stating that livestock producers face
financial losses if packers fail to pay for livestock,
Agriculture's report contains virtually no discussion of
whether livestock producers are more in need of the type
of protection provided by the proposed bill than are sellers
in any other industry. In light of the increase in regula-
tion that would result from passage of the bill, the showing
of a compelling need should be a prerequisite to any
decision to support the legislation.
The present bonding requirement of the Packers and
Stockyards Act applies to persons who sell livestock on a
commission, those who provide stockyard services, and
dealers in livestock, as defined in 7 U.S.C. §201 (d). The
Act has been read to require bonding of those who act as
agents of the buyer or seller. United States V. Robert &
Oake, 65 F. 2d 630 (7th Cir., 1933). It is common practice
to require agents having a possessory but not a proprietary
interest in property to be bonded. It is much less common
to require, as H.R. 5493 would, a buyer, who upon completion
of the sale takes full title to the property, to be bonded.
Thus, the proposed amendment would extend the scope of
protection offered by the Packers and Stockyards Act
significantly and would add a rather unusual encumberance to
the relationship of buyer to seller.
The Department of Agriculture has estimated the cost
of the bonding requirement to the industry and the increase
in regulatory expenses that the bill would generate. While
it is not clear that significant anticompetitive effects
would result from the bonding requirement, the increased
costs incurred by the packers will be reflected in the food
bill of the American consumer. In a time of high unemploy-
ment and severe inflation, measures which would be likely
to increase the costs of basic food products should be
instituted only to meet a compelling need, and then only
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if less costly alternatives are not available. It is not
clear that this proposal could meet either of these tests
LIBRARY
2
Agriculture's report notes that 21 states have
already enacted bonding statutes and many private
marketing organizations have bonding requirements.
The fact that a substantial number of producers are
already protected by bonding requirements casts some
doubt on the need for a statute at the Federal level.
There would not seem to be any pressing need for
national uniformity of bonding requirements.
Section 2 of H.R. 5493, which changes the definition
of "packer" in 7 U.S.C. $191, will also significantly
increase the regulatory power of the Department of
Agriculture. As defined in H.R. 5493, the term "packer"
would include any person buying or selling in commerce
meat, meat products, poultry or poultry products. To
qualify as a "packer" as it is presently defined, a person
must be engaged in the slaughter of livestock or in
manufacturing or preparing meat or meat products. While
the Department of Agriculture can presently regulate some
supermarket chains as packers, it can do so only because
these chains, as well as running retail operations,
slaughter livestock or are engaged in the manufacture
of meat products. If the amendments proposed in H.R. 5493
were adopted, the regulatory power of the Department of
Agriculture would extend to most of the local, retail
grocery stores in the country. This is certainly a very
substantial increase in the level of regulation in the
food industry, and the regulation of retail meat sales
is, at best, only remotely related to the bill's goal
of providing financial protection to livestock producers.
This is certainly an approach inconsistent with the
growing move toward less economic regulation by the
Federal Government, and one which should be taken only
with the strongest justification.
Section 4 of the bill gives the Secretary power to
order packers to cease and desist from operating while
insolvent. Section 5 expands the damages provision of
LIBRARY
7 U.S.C. $209 to allow any person injured by an action
in violation of the Packers and Stockyards Act to file
a claim for reparation with the Department of Agriculture.
Section 6 provides procedural guidelines for hearings by
Agriculture, and Section 7 provides that the Secretary
may, through the Attorney General, apply to the courts
for temporary injunctions when necessary to effectuate
the purposes of the Act. These sections provide the
administrative authority for substantial regulation of
3
he buying and selling of meat and poultry. As provided by
Section 2, this regulatory power would apply to almost every
transfer of the product from the time it leaves the farm to
the time it is purchased from the retailer. Absent the show-
ing of a compelling need for such extensive government con-
trol of meat sales and the lack of other rational alternatives,
the Department of Justice does not feel that passage of the bill
would be in the public interest.
The Department of Justice strongly recommends against
submission of the proposed report to the Congress.
Sincerely,
Michael M. Uhlmann
Assistant Attorney General
BRD
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
August 1, 1975
MEMORANDUM FOR BARRY ROTH
Subject: Executive Privilege
Attached are the documents which were the subject of
your conversations with Jim Mitchell yesterday and
today, and a copy of OMB Circular A-19.
I am advised that the Department of Justice letter of
July 8, 1975 has been released to a member of the House
Agriculture Committee, and that the Department of Agri-
culture has now received a written request from the
Chairman of the House Agriculture Committee for a copy
of their undated letter attached to their May 9 memo to
the Director, OMB.
Please advise me at your earliest convenience whether
OMB and Agriculture are authorized to withhold these
documents on the ground of executive privilege.
W.M.N.
William M. Nichols
Acting General Counsel
Enclosures
CC:
Jim Mitchell
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LIBRARY
THE WHITE HOUSE
WASHINGTON
September 22, 1975
MEMORANDUM FOR: PHILIP BUCHEN
ROD HILLS
FROM:
MAX FRIEDERSDORF
m.(.
SUBJECT:
S.1284
Industry is apparently becoming alarmed about the strong
possibility of Congressional passage of S.1284 which they
contend will make American industry subject to class action
suit/which could be brought by persons not directly or
indirectly damaged by alleged consumer anti-trust violations.
It is my understanding that Justice has testified in luke
warm support of the legislation.
It is a complicated area and I make no pretense of expertise.
However, I have been contacted by Bill Grief, Washington
Representative for Bristol Myers, who requested that I forward
the attached material to you together with a request that
you grant an appointment to Mr. Philip A. Lacovara whose card
I am attaching to the material.
I have no idea of the merits of the industry's arguments,
however, if this bill is anti-business, we may not want to
be in a position of endorsing it.
LIBRARY
THE WHITE HOUSE
WASHINGTON
Date 1/2/76
TO: Phil Buchen
FROM:
BARRY ROTH
ACTION:
Approval/Signature
Comments/Recommendations
For Your Information
REMARKS:
we have recommended approval of
the Folklifc Preservation Act. ken has
dratted the attached signing statement
noting the constitutional problems
raised by Justice. Domestic Council
has the oction and has indicated
that the statement is OK with
BERALD and LIBRARY
STATEMENT BY THE PRESIDENT
200
I have today signed H. R. 6673, the "American Folklife
Preservation Act. "
H.R. 6673 establishes in the Library of Congress an
American Folklife Center to preserve and present American
folklife. The Center is to be directed by a Board of Trustees
composed as follows: four members appointed by the President
from among Federal officials concerned with folklife; four
members appointed each by the President pro tempore of the
Senate and the Speaker of the House of Representatives from
among private individuals noted for their involvement in folklife;
the Librarian of Congress; the Secretary of the Smithsonian;
the Chairman of the National Endowments for the Arts and the
Humanities and the Director of the Center.
The Center is authorized to enter into contracts for
activities including research, scholarship, training, publications,
exhibits, workshops and educational projects for classroom and
general usage. It will also establish and maintain a national
archive and center for American folklife, collect specific types
of works for preservation in the archive and loan such works to
the public.
LIBRARY
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I have serious reservations concerning the constitutional
propriety of placing the functions to be performed by the Center
outside the Executive branch and the assignment of executive
duties to officers appointed by Congress. However, given
historical practice and custom in the area of cultural and
educational affairs and the potential of H. R. 6673 to enrich the
cultural life of the nation, I am granting my approval to the
measure.
GERALE FORD LIBRARY
Friday 1/2/76
10:20 Ken Lazarus said he thinks the President should
sign the Folklife Preservation Act.
Scalia's memo is not adamant on it. It's O.K.
if the President wants to sign it.
If you agree, they can go ahead and work up a draft
signing statement.
Ken thinks it's O.K. -- but
if you want to discuss it, he would be glad to talk
with you when you're free.
LIDRARY GERALD ? FORD
IMPORTANT
AND URGENT
GPO 16-64099-1
ASSISTANT ATTORNEY GENERAL
Department of Justice
Mashington, D.C. 20530
DEC 31 1975
MEMORANDUM FOR THE HONORABLE PHILIP W. BUCHEN
Counsel to the President
Re: Enrolled Bill H.R. 6673, 94th Cong., 1st
Sess., "To provide for the establishment
of an American Folklife Center in the
Library of Congress, and for other purposes."
This is in response to the telephone request of Mr. Barry
Roth of your staff for the views of the Department of Justice
on the constitutional aspects of the above-entitled enrolled
bill, with which the department has had no prior contact.
The bill contains findings to the effect that it is
appropriate and necessary for the Federal Government to support
research and scholarship in American folklife, and that the
encouragement and support of American folklife is an appro-
priate matter of concern to the Federal Government. Section 2.
The bill then sets up an American Folklife Center in the
Library of Congress. Section 4(a). The Center would be
under the direction of a Board of Trustees composed as follows:
Four members appointed by the President of the
United States;
Four members appointed by the President pro tempore
of the Senate;
Four members appointed by the Speaker of the House
of Representatives;
The Librarian of Congress;
The Secretary of the Smithsonian Institution;
The Chairman of the National Endowment for the Arts;
The Chairman of the National Endowment for the
Humanities; and
GREATE FORD
REVOLUTION
The Director of the Center. Section 4(b).
AMERICAN
BICENTENNIAL
1776
1976
RIGINAL RETIRED FOR PRESERVATION
The Librarian of Congress is empowered to appoint a
Director of the Center after consultation with the Board.
Section 4(f). The Director would be the chief executive
officer of the Center, and would have responsibility for
carrying out the functions of the Center, subject to the
direction of the Board and the general supervision of the
Librarian. Section 4(g).
Section 5 sets forth the functions which the Librarian
of Congress is authorized to perform under the Act (subsec-
tion (a)) and provides that they are to be carried out
through the Center (subsection (b)
In our view the bill presents two important constitu-
tional problems: The first involves the doctrine of the
separation of powers, which requires that statutes assigning
executive duties must be administered by the Executive branch
and not by Congressional officers, such as the Librarian of
Congress; the second is the principle that functions of an
executive nature must be carried out by officers of the United
States appointed in compliance with the requirements of
Article II of the Constitution.
I.
Article I of the Constitution vests the legislative power
of the United States in the Congress. Article II vests the
Executive power of the United States in the President and
directs him to "take Care that the laws be faithfully executed. "
This means that statutes creating functions of an executive
nature are to be carried out by the Executive branch of the
Government under the supervision of the President, and not by
Congressional agencies. This basic constitutional considera-
tion, of course, does not preclude the performance of internal
Congressional functions and of Congressional services by Con-
gressional officers. The bill, however, goes far beyond that.
Some of the functions to be performed by the Librarian of
Congress through the American Folklife Center have, it is
true, a substantial nexus with the Library of Congress (see,
e. g., section 5 (a) (2) (5)) though even as to these it is
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open to question whether they truly come within the ambit of
LIBRARY
- 2 -
an institution whose primary purpose is to give library and
reference service to Congress. This, however, cannot under
any circumstances be said of the contract authority set forth
in section 5 (a) (1), empowering the Librarian to--
"(1) enter into, in conformity with Federal
procurement statutes and regulations, contracts
with individuals and groups for programs for the--
"(A) initiation, encouragement, support,
organization, and promotion of research,
scholarship, and training in American folk-
life;
"(B) initiation, promotion, support,
organization, and production of live per-
formances, festivals, exhibits, and work-
shops related to American folklife;
"(c) purchase, receipt, production, arrange-
ment for, and support of the production of
exhibitions, displays, publications, and
presentations (including presentations by
still and motion picture films, and audio
and visual magnetic tape recordings) which
represent or illustrate some aspect of
American folklife; and
"(D) purchase, production, arrangement for,
and support of the production of exhibitions,
projects, presentations, and materials
specially designed for classroom use repre-
senting or illustrating some aspect of American
folklife."
GERNED SOU
- 3 -
These activities do not appear to be related to any
internal Congressional function or service. While it is true
that a few other functions of the Library, such as the provi-
sion of books and sound production records to the blind and
other physically handicapped persons, 2 U.S.C. 135 (a), are
not directly so related either, they are at least a logical
adjunct of the historical library function which the venerable
institution has provided. While one may permit this for
reasons of practicality and historical prescription, the
extension of the institution's activities into the entirely
unrelated field of funding folklife training and performances
is a change of qualitative nature. The extension would thus
have been made first, from an institution which serves the
Congress as a library to one which serves the public in the
same capacity; and finally, to one which serves the public in
capacities entirely unrelated either to Congressional service
or to libraries. This last extension moves the Library of
Congress into areas now occupied by the National Endowment
for the Arts, and the National Endowment for the Humanities
(both Executive agencies).
II.
The second constitutional problem in the bill concerns
the manner in which ten members of the Board of Trustees of
the American Folklife Center are to be appointed.
Under the bill, the Board would perform important functions
in the administration of the statutory program; its responsi-
bilities would not be limited to advice. For example, it
would give direction, not merely advice, to the Director of
the Center, an official appointed by the Librarian (section
4(f)); and certain functions of the Center could be undertaken
only if the Board considers them "appropriate." Sections 5(b),
6. Again, certain types of contracts may be entered into only
with the concurrence of the Board. See, e.g., sections 6 (a),
7 (a) (2), (8). Under section 7 (a) (7) a majority of two-thirds
of the members of the Board may even waive otherwise applicable
FORD
bonding requirements.
The Board therefore performs functions of an executive
nature. Its activities are not merely of an advisory nature
or limited to a single task of limited duration, as is the
- 4 -
case with so-called "ad hoc" officers. See The Constitution
of the United States, Analysis and Interpretation, Sen. Doc.
92-82, p. 523 (1973).
It follows that the functions of the members of the Board
of Trustees can be performed only by persons who are officers
of the United States and appointed in the manner prescribed
by Article II, section 2, clause 2 of the Constitution, namely,
by the President by and with the advice of the Senate, or
with Congressional authorization by the President alone, or
the courts of law, or the heads of departments.
The bill fails to comply with these constitutional re-
quirements with respect to the following members of the Board:
(a) The eight members appointed by the President pro
tempore of the Senate and the Speaker of the House, respec-
tively;
(b) The Secretary of the Smithsonian Institution, who
is appointed by the Board of Regents of the Smithsonian
Institution (20 U.S.C. 44), which cannot be viewed as the
equivalent of a department head within the meaning of Article
II; and
(c) The Director of the Center who would be appointed by
the Librarian of Congress who similarly does not have the
status of a department head within the meaning of Article II
of the Constitution.
A similar problem arose in connection with the legislation
establishing the Japan-United States Friendship Commission
(Public Law 94-118) and in the Arts and Artifacts Indemnity
Act (Public Law 94-158). There, as indicated in the President's
signing statements, it was possible to obviate the difficulty
by considering the members appointed by the President pro
tempore and the Speaker to be advisory-nonvoting members. This
approach does not appear to be available here, because the
improperly appointed members would constitute ten out of
seventeen of the Board's membership.
is
FORD
SERALS
- 5 -
LIBRARY
For the above reasons, it is our view that the provisions
of this legislation are contrary to the strict provisions of
the Constitution. It must be acknowledged, however, that in
the area of cultural and educational affairs, the separation
of powers may not have been strictly observed. Despite the
fact that they do not constitute as drastic a departure from
the constitutional requirements as the present bill, those
provisions of the Library of Congress Act which authorize
the provision of specific services to the public must be con-
sidered a technical anomaly. Indeed, it is probably demon-
strable that from an early date the primary function of the
Library of Congress has been public service rather than
Congressional assistance. Similarly, the makeup of the Smith-
sonian Institution--if that is to be regarded as a Federal
agency, a point which is subject to some dispute--contravenes
the constitutional text.
Complete acceptance of this historical practice runs the
risk of inviting further transfers to the Library of Congress
of cultural and educational functions; and perhaps of en-
couraging more serious encroachments upon Executive preroga-
tives through the assignment of entirely different functions
to the General Accounting Office. Moreover, it appears from
our experience with the Japan-United States Friendship Com-
mission and the Arts and Artifacts Indemnity Act, discussed
above, that only a Presidential veto directed at this practice
will suffice to call the attention of Congress to the problem
involved. Given the very nature of all of these cultural
and educational proposals, it may be vain to await an
occasion for a Presidential veto more propitious than the
present. Nonetheless, in light of the historical practice
we think the President can responsibly sign the present legis-
lation with expression of his serious reservation concerning
the constitutional propriety of placing such functions outside
the Executive branch.
Scalia
Assistant Attorney General
Office of Legal Counsel
FORD 03VH30 LIBRARY
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U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D. C. 20530
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1/2/76
Honorable Philip W. Buchen
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Counsel to the President
FORD is LIBRARY 076839
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Washington, D. C. 20500
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call Eth 2632
20
ASSISTANT ATTORNEY GENERAL
Department of Justice
Mashington, D.C. 20530
DEC 31 1975
MEMORANDUM FOR THE HONORABLE PHILIP W. BUCHEN
Counsel to the President
Re: Enrolled Bill H.R. 6673, 94th Cong., 1st
Sess., "To provide for the establishment
of an American Folklife Center in the
Library of Congress, and for other purposes. "
This is in response to the telephone request of Mr. Barry
Roth of your staff for the views of the Department of Justice
on the constitutional aspects of the above-entitled enrolled
bill, with which the department has had no prior contact.
The bill contains findings to the effect that it is
appropriate and necessary for the Federal Government to support
research and scholarship in American folklife, and that the
encouragement and support of American folklife is an appro-
priate matter of concern to the Federal Government. Section 2.
The bill then sets up an American Folklife Center in the
Library of Congress. Section 4(a). The Center would be
under the direction of a Board of Trustees composed as follows:
Four members appointed by the President of the
United States;
Four members appointed by the President pro tempore
of the Senate;
Four members appointed by the Speaker of the House
of Representatives;
The Librarian of Congress;
The Secretary of the Smithsonian Institution;
The Chairman of the National Endowment for the Arts
BERMIO R. FORD LIBRARY
The Chairman of the National Endowment for the
Humanities; and
REVOLUTION
The Director of the Center. Section 4(b).
TTE
19th
The Librarian of Congress is empowered to appoint a
Director of the Center after consultation with the Board.
Section 4(f). The Director would be the chief executive
officer of the Center, and would have responsibility for
carrying out the functions of the Center, subject to the
direction of the Board and the general supervision of the
Librarian. Section 4(g).
Section 5 sets forth the functions which the Librarian
of Congress is authorized to perform under the Act (subsec-
tion (a)) and provides that they are to be carried out
through the Center (subsection (b)
In our view the bill presents two important constitu-
tional problems: The first involves the doctrine of the
separation of powers, which requires that statutes assigning
executive duties must be administered by the Executive branch
and not by Congressional officers, such as the Librarian of
Congress; the second is the principle that functions of an
executive nature must be carried out by officers of the United
States appointed in compliance with the requirements of
Article II of the Constitution.
I.
Article I of the Constitution vests the legislative power
of the United States in the Congress. Article II vests the
Executive power of the United States in the President and
directs him to "take Care that the laws be faithfully executed."
This means that statutes creating functions of an executive
nature are to be carried out by the Executive branch of the
Government under the supervision of the President, and not by
Congressional agencies. This basic constitutional considera-
tion, of course, does not preclude the performance of internal
Congressional functions and of Congressional services by Con-
gressional officers. The bill, however, goes far beyond that.
Some of the functions to be performed by the Librarian of
Congress through the American Folklife Center have, it is
true, a substantial nexus with the Library of Congress (see,
e. g., section 5 (a) (2) - though even as to these it iso
open to question whether they truly come within the ambit of
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LIBRARY
an institution whose primary purpose is to give library and
reference service to Congress. This, however, cannot under
any circumstances be said of the contract authority set forth
in section 5 (a) (1), empowering the Librarian to--
"(1) enter into, in conformity with Federal
procurement statutes and regulations, contracts
with individuals and groups for programs for the--
"(A) initiation, encouragement, support,
organization, and promotion of research,
scholarship, and training in American folk-
life;
"(B) initiation, promotion, support,
organization, and production of live per-
formances, festivals, exhibits, and work-
shops related to American folklife;
"(C) purchase, receipt, production, arrange-
ment for, and support of the production of
exhibitions, displays, publications, and
presentations (including presentations by
still and motion picture films, and audio
and visual magnetic tape recordings) which
represent or illustrate some aspect of
American folklife; and
"(D) purchase, production, arrangement for,
and support of the production of exhibitions,
projects, presentations, and materials
specially designed for classroom use repre-
senting or illustrating some aspect of American
folklife."
SRD
LIBRARY
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These activities do not appear to be related to any
internal Congressional function or service. While it is true
that a few other functions of the Library, such as the provi-
sion of books and sound production records to the blind and
other physically handicapped persons, 2 U.S.C. 135 (a), are
not directly so related either, they are at least a logical
adjunct of the historical library function which the venerable
institution has provided. While one may permit this for
reasons of practicality and historical prescription, the
extension of the institution's activities into the entirely
unrelated field of funding folklife training and performances
is a change of qualitative nature. The extension would thus
have been made first, from an institution which serves the
Congress as a library to one which serves the public in the
same capacity; and finally, to one which serves the public in
capacities entirely unrelated either to Congressional service
or to libraries. This last extension moves the Library of
Congress into areas now occupied by the National Endowment
for the Arts, and the National Endowment for the Humanities
(both Executive agencies).
II.
The second constitutional problem in the bill concerns
the manner in which ten members of the Board of Trustees of
the American Folklife Center are to be appointed.
Under the bill, the Board would perform important functions
in the administration of the statutory program; its responsi-
bilities would not be limited to advice. For example, it
would give direction, not merely advice, to the Director of
the Center, an official appointed by the Librarian (section
4(f)); and certain functions of the Center could be undertaken
only if the Board considers them "appropriate." Sections 5(b),
6. Again, certain types of contracts may be entered into only
with the concurrence of the Board. See, e.g., sections 6(a),
7 (a) (2), (8). Under section 7 (a) (7) a majority of two-thirds
of the members of the Board may even waive otherwise applicable
bonding requirements.
FORD
The Board therefore performs functions of an executive
nature. Its activities are not merely of an advisory nature
LIBRAR
or limited to a single task of limited duration, as is the
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case with so-called "ad hoc" officers. See The Constitution
of the United States, Analysis and Interpretation, Sen. Doc.
92-82, p. 523 (1973).
It follows that the functions of the members of the Board
of Trustees can be performed only by persons who are officers
of the United States and appointed in the manner prescribed
by Article II, section 2, clause 2 of the Constitution, namely,
by the President by and with the advice of the Senate, or
with Congressional authorization by the President alone, or
the courts of law, or the heads of departments.
The bill fails to comply with these constitutional re-
quirements with respect to the following members of the Board:
(a) The eight members appointed by the President pro
tempore of the Senate and the Speaker of the House, respec-
tively;
(b) The Secretary of the Smithsonian Institution, who
is appointed by the Board of Regents of the Smithsonian
Institution (20 U.S.C. 44), which cannot be viewed as the
equivalent of a department head within the meaning of Article
II; and
(c) The Director of the Center who would be appointed by
the Librarian of Congress who similarly does not have the
status of a department head within the meaning of Article II
of the Constitution.
A similar problem arose in connection with the legislation
establishing the Japan-United States Friendship Commission
(Public Law 94-118) and in the Arts and Artifacts Indemnity
Act (Public Law 94-158). There, as indicated in the President's
signing statements, it was possible to obviate the difficulty
by considering the members appointed by the President pro
tempore and the Speaker to be advisory-nonvoting members. This
approach does not appear to be available here, because the
improperly appointed members would constitute ten out of
seventeen of the Board's membership.
FORD
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LIBRARY
For the above reasons, it is our view that the provisions
of this legislation are contrary to the strict provisions of
the Constitution. It must be acknowledged, however, that in
the area of cultural and educational affairs, the separation
of powers may not have been strictly observed. Despite the
fact that they do not constitute as drastic a departure from
the constitutional requirements as the present bill, those
provisions of the Library of Congress Act which authorize
the provision of specific services to the public must be con-
sidered a technical anomaly. Indeed, it is probably demon-
strable that from an early date the primary function of the
Library of Congress has been public service rather than
Congressional assistance. Similarly, the makeup of the Smith-
sonian Institution--if that is to be regarded as a Federal
agency, a point which is subject to some dispute--contravenes
the constitutional text.
Complete acceptance of this historical practice runs the
risk of inviting further transfers to the Library of Congress
of cultural and educational functions; and perhaps of en-
couraging more serious encroachments upon Executive preroga-
tives through the assignment of entirely different functions
to the General Accounting Office. Moreover, it appears from
our experience with the Japan-United States Friendship Com-
mission and the Arts and Artifacts Indemnity Act, discussed
above, that only a Presidential veto directed at this practice
will suffice to call the attention of Congress to the problem
involved. Given the very nature of all of these cultural
and educational proposals, it may be vain to await an
occasion for a Presidential veto more propitious than the
present. Nonetheless, in light of the historical practice
we think the President can responsibly sign the present legis-
lation with expression of his serious reservation concerning
the constitutional propriety of placing such functions outside
the Executive branch.
Scalia
Assistant Attorney Generah. FORD
Office of Legal Counsel
LIBRARY
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Monday 5/10/76
10:55 Bill Kendall said that you were worrying about S. Res. 400
regarding declassification. He said to relax -- Congress
isn't going to take any action right away.
Referred Viendall
to m Leigh
FORD & LIBRARY 038870