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Federal Election Commission - Morton Appointment as White House Counsellor (3)
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Federal Election Commission - Morton Appointment as White House Counsellor (3)
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Philip W. Buchen Files
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The original documents are located in Box 15, folder "Federal Election Commission -
Morton Appointment as White House Counsellor (3)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 15 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
DRAFT 1/24/76
Dear Chairman Curtis:
As I indicated at our meeting on January 19, the
purpose of this letter is to bring to the attention
of the Federal Election Commission a description of
the assignments and responsibilities it is planned
that Secretary Rogers Morton will assume when he joins
the White House staff on February 1 as Counsellor to
the President.
Secretary Morton's responsibilities will lie in
a number of separate, but occasionally overlapping
areas. These are:
1. Counsellor to the President with Cabinet
rank;
2. Member of the Economic Policy Board (EPB)
and the EPB Executive Committee;
3. Member of the Energy Resources Council (ERC)
and the ERC Executive Committee;
4. Member of the Domestic Council; and
5. Principal White House official for liaison
with the President Ford Committee (PFC)
and the Republican National Committee (RNC)
As Counsellor, he will be one of four Cabinet-
level assistants to the President providing a broad
- 2 -
range of advice on such subjects as the President may
request. In this capacity, he will be filling an
advisory role that has been vacant since Donald Rumsfeld
left the White House staff.
His activities in this role will include daily
meetings with the President to review current assignments
and events, daily senior White House staff meetings,
Cabinet meetings, Congressional Leadership meetings and
special projects at the direction of the President.
Secretary Morton will continue to give specific
substantive input on domestic, economic and energy
matters which have been the focus of this attention
during his tenure as Secretary of the Interior and
Secretary of Commerce. As a member of the Economic
Policy Board and the EPB Executive Committee, he will
participate in daily meetings of the Executive Committee
as well as the review process with respect to current
economic data and forecasts, and proposed legislation.
As a member of the Energy Resources Council and the ERC
Executive Committee, he will attend weekly meetings of
the Council and work with other Administration energy
leaders (Messrs. Zarb, Kleppe, Richardson, and others)
in the review of new and existing energy policy
FORD
initiatives, the progress of current programs and
proposed legislation.
- 3 -
In addition, Secretary Morton will continue to
serve as a member of the Domestic Council. In particular,
the Secretary will participate in various Domestic
Council task forces and activities relating to existing
and proposed programs concerning issues such as water
quality, land use, depletable mineral resources,
individual privacy, illegal aliens and general revenue
sharing.
As the official at the White House chiefly responsible
for liaison with the PFC, Secretary Morton will be respon-
sible for maintaining communication between the White
House and the campaign committee in order to minimize
demands on the time of Gerald R. Ford as candidate and
to protect the time which he requires for his prime
duties and responsibilities as President. Further,
Secretary Morton will assure that campaign spokesmen
for the candidate truly reflect his policies and positions
as President. As the principal liaison official at the
White House for the Republican National Committee,
Secretary Morton will screen and pass upon requests
for the President's traditional involvement as leader
FORD
of his party so as to minimize demands on his time
for
this purpose.
- 4 -
This liaison role with the two political committees
requires a person who is involved officially at a high
level in the overall operations of the White House
staff and who is thoroughly familiar with ongoing and
planned official actions and activities of the President
in terms of both their substance and scheduling. Moreover,
only one who is in this official position can reflect the
interests of the Presidency in judging whether specific
questions or requests for the President's consideration
from the political committees and election workers actually
warrant the President's attention and how they may be
disposed of without taking the President's time.
Secretary Morton will also participate in various
public appearances as they relate to the President's
official duties and the work of his Administration.
In the course of these official duties, Secretary
Morton will perform certain duties such as the review
of all proposed Presidential speeches and statements,
internal staffing memoranda to the President, personnel
appointments, scheduling proposals, staff meetings, and
the like.
FULL
In describing his new duties to the media on
January 13, Secretary Morton stated:
- 5 -
"I think that the political duties will be a
concentration of the political duties now
being carried out by other members of the
staff. Dick Cheney has had a running
liaison communication with the campaign
community -- Bo Callaway's committee. There
has been a normal communication between
Bob Hartmann, for example, and the National
Committee.
I think these duties would be concentrated
into one shop, which I am very happy to do,
and I don't think they are incidental in
the sense of their importance, but I don't
think they are going to be overwhelming in
the sense of their consumption of time on
my part.
I am not going to get into the management
of the campaign. I have not thought of
that. However, I think the President has
to have some vehicle through which he can
communicate with the campaign and also as
party leader with the National Committee.
I am a very logical person, having been
Chairman of the National Committee and
having been involved in campaigns, to do
that.
*
*
I think I am here as an overall adviser
to the President. The experience I have
FORD
had in the EPB -- the Economic Policy
Board -- the energy field, the resource
STATE
management field and the economic develop-
LIBRARY
ment field in Government over the last
five years -- previous to that on the
Ways and Means Committee and other
Committees of the House of Representatives --
provides me with enough background to advise
the President in an overall sense, and to
take a matter that he can assign to me, look
at it, evaluate it and give him my best
judgment on whether it is a good way to go
or whether it should be a different way to
go or what have you. 11
- 6 -
Apart from his aforementioned official duties,
Secretary Morton plans to spend added time of his own
on electioneering activities for the President, e.g.,
participation in PFC political strategy sessions, making
political speeches, attendance at PFC fundraisers,
delegate recruitment and the like. Of course, any
expenses incurred in relation to such electioneering
activities will be paid by the PFC in accordance with
the Commission's proposed allocation regulations.
In conclusion, the above represents our best under-
standing of the duties and responsibilities it is planned
that Secretary Morton will assume when he joins the
White House staff. The question of how one should treat
the salaries of assistants to public officials such as
Secretary Morton or the administrative assistants to
incumbent Congressmen, Senators and Governors, is not
specifically addressed in either the Federal election
laws or the requlations that have been proposed to date
by the Commission. This is a matter of general concern
to all holders of public office who are candidates for
Federal elective office, and for this reason we believe
there is a definite need for general guidelines or
regulations applicable to all candidates which clearly
FORD
address this issue. However, in the meantime, we
- 7 -
request that the Commission issue an Advisory Opinion
pursuant to Section 437f of Title 2, the United States
Code, with respect to the matters set forth herein
regarding Secretary Morton's duties and responsibilities
as a member of the White House staff.
As I indicated to you at our meeting, the President
has directed that his campaign be conducted in full
compliance with both the letter and spirit of the election
laws. I can assure you that the White House and the PFC
will abide by such opinion as the Commission may issue
in this matter. Also, if it is determined by the
Commission that some portion of Secretary Morton's salary
is to be treated as an expenditure within the meaning of
18 U.S.C. 591 (f), then the PFC will reimburse the
Treasury of the United States for such amount.
Your expeditious consideration of this matter
would be appreciated.
Sincerely,
FORD
THE WHITE HOUSE
So ey In
WASHINGTON
January 30, 1976
Dear Chairman Curtis:
As I indicated at our meeting on January 19, the
purpose of this letter is to describe the assignments
and responsibilities it is planned that Secretary
Rogers Morton will assume when he is appointed to the
White House staff on February 2 as Counsellor to the
President.
Secretary Morton's responsibilities will focus on a
number of separate, but occasionally overlapping,
areas. These are:
1. Counsellor to the President with
Cabinet rank;
2. Principal White House official for
liaison with the President Ford
Committee (PFC) and the Republican
National Committee (RNC);
3. Member of the Economic Policy Board
(EPB), and the EPB Executive
Committee;
4. Member of the Energy Resources
Council (ERC), and the ERC Executive
Committee; and
BERAIS R. FORD VIBRANT
5. Member of the Domestic Council.
As Counsellor, Secretary Morton will be one of four
Cabinet-level assistants appointed by the President
to provide a broad range of advice on such subjects
as the President may request. In this capacity, the
Secretary will be filling an advisory role that has
been vacant since Donald H. Rumsfeld left his position
on the White House staff to become Secretary of Defense.
His activities as Counsellor will include daily meetings
with the President to review current assignments and
events, daily senior White House staff meetings, Cabinet
- 2 -
meetings, congressional leadership meetings and
special projects at the personal direction of the
President.
As the official at the White House chiefly responsible
for liaison with the PFC, Secretary Morton will maintain
communication between the White House and the campaign
committee in order to minimize demands on Gerald R. Ford
as candidate and thereby to protect the time which he
requires for his essential duties and responsibilities
as President. In addition, the Secretary will attempt
to assure that campaign spokesmen for the candidate
accurately reflect the President's policies and
positions. As the principal liaison official at the
White House for the Republican National Committee,
Secretary Morton will screen and funnel requests and
information for the President in his traditional capacity
as leader of his Party. Only an individual in such an
official position can reflect the interests of the
Presidency in judging whether specific questions or
requests for the President's consideration from the
political committees and campaign workers actually
warrant the President's attention, and how thev may be
disposed of without taking an undue amount of the
President's time.
Secretary Morton will continue to give specific substan-
tive input on various domestic, economic and energy
matters, many of which have been the focus of his atten-
tion as Secretary of the Interior and Secretary of
Commerce. As a member. of the Economic Policy Board and
its Executive Committee, he will participate in their
daily meetings, as well as in the comment and review
process on current economic issues and proposed legisla-
tion. As a member of the Energy Resources Council and
its Executive Committee, he will attend weekly meetings
and participate with other Administration energy leaders
in the review of energy policy, existing programs and
proposed legislation.
Secretary Morton will continue to serve as a member of
the Domestic Council. In particular, he will participate
in various Domestic Council task forces and activities
relating to existing and proposed programs and legisla-
tive initiatives concerning issues such as water quality,
depletable mineral reserves, individual privacy, illegal
aliens and general revenue sharing.
DEPARTMENT
FORD
LIBRARY
- 3 -
In the course of his official duties, Secretary Morton
will review proposed Presidential speeches, statements
and positions on issues, internal staffing memoranda
to the President and personnel appointments. Secretary
Morton will also participate in various public
appearances as they relate to the President's official
duties and the work of the Administration.
Apart from the aforementioned official duties, Secretary
Morton plans to spend time of his own participating in
campaign activities on behalf of the President. In
particular, Secretary Morton will participate in PFC
political strategy sessions, deliver political speeches,
attend PFC fundraisers and engage in other campaign
activities. Of course, any expenses incurred in relation
to such campaign activities will be paid by the PFC in
accordance with the Commission's proposed allocation
regulations.
In describing his duties, Secretary Morton stated, on
January 13, 1976:
"I think that the political duties will
be a concentration of the political duties
now being carried out by other members of
the staff. Dick Cheney has had a running
liaison communication with the campaign
community -- Bo Callaway's committee.
There has been a normal communication
between Bob Hartmann, for example, and
the National Committee.
"I think these duties would be concen-
trated into one shop, which I am very happy
to do, and I don't think they are incidental
in the sense of their importance, but I don't
think they are going to be overwhelming in
the sense of their consumption of time on my
part.
"I am not going to get into the manage-
ment of the campaign. I have not thought of
that. However, I think the President has to
have some vehicle through which he can
communicate with the campaign and also as
STATE
TORD
- 4 -
party leader with the National Committee.
I am a very logical person, having been
Chairman of the National Committee and
having been involved in campaigns, to do
that.
*
*
*
"I think I am here as an overall adviser
to the President. The experience I have
had in the EPB --- the Economic Policy Board --
the energy field, the resource management
field in Government over the last five years --
previous to that on the Ways and Means Com-
mittee of the House of Representatives ---
provides me with enough background to advise
the President in the overall sense, and to
take a matter that he can assign to me, look
at it, evaluate it and give him my best judg-
ment on whether it is a good way to go or
whether it should be a different way to go or
what have you. "
The question of whether to treat a portion of the
salaries of assistants to public officials, such as
Secretary Morton or administrative assistants to
incumbent Congressmen, Senators and Governors who
seek Federal elective office, as campaign expenditures
does not appear to be specifically addressed in either
the Federal election laws or the regulations that have
been proposed to date by the Commission. If the
Commission believes that such matters are affected by
the laws which it administers, it would seem appropriate
to have complete and permanent guidelines or regulations
on the subject which apply to all candidates similarly
involved.
However, inasmuch as the promulgation of such guidelines
or regulations may be a lengthy and slow process, we
request that the Commission issue an Advisory Opinion,
pursuant to Section 437£ of Title 2, the United States
Code, with respect to the matters set forth herein. In
particular, we request the Commission to decide whether
any portion of the salaries of assistants to public
officials, such as Secretary Morton, should be considered
as expenditures within the meaning of 18 U.S.C. 591 (f) or
LIDRANT BERALD R. FORD
- 5 -
any other provision of the Federal election laws and,
therefore, must be reported for the purpose of
determining that a candidate has kept within his or
her expenditure limits.
As I indicated to you at our meeting, the President has
directed that his campaign be conducted in full compliance
with both the letter and the spirit of the election laws.
Accordingly, I can assure you that the White House and
the President Ford Committee will abide by such opinion
as the Commission may issue in this matter. Also, if it
is determined that some portion of the salary of public
officials such as Secretary Morton is to be treated as
an expenditure under the Federal election laws, the
President Ford Committee will then reimburse the Treasury
of the United States for such amount, in a manner that is
consistent with applicable Federal law, including
18 U.S.C. 209.
Due to the importance of this issue, we request that
the Commission expedite to the greatest extent possible
this request for an Advisory Opinion.
Sincerely,
They Philip W. W.Buelen Buchen
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D. C. 20463
1.
MERALD
LIBRARY
THE WHITE HOUSE
WASHINGTON
January 30, 1976
Dear Chairman Curtis:
As I indicated at our meeting on January 19, the
purpose of this letter is to describe the assignments
and responsibilities it is planned that Secretary
Rogers Morton will assume when he is appointed to the
White House staff on February 2 as Counsellor to the
President.
Secretary Morton's responsibilities will focus on a
number of separate, but occasionally overlapping,
areas. These are:
1. Counsellor to the President with
Cabinet rank;
2. Principal White House official for
liaison with the President Ford
Committee (PFC) and the Republican
National Committee (RNC) ;
3. Member of the Economic Policy Board
(EPB), and the EPB Executive
Committee;
FORD
STATES
4. Member of the Energy Resources
Council (ERC), and the ERC Executive
Committee; and
5. Member of the Domestic Council.
As Counsellor, Secretary Morton will be one of four
Cabinet-level assistants appointed by the President
to provide a broad range of advice on such subjects
as the President may request. In this capacity, the
Secretary will be filling an advisory role that has
been vacant since Donald H. Rumsfeld left his position
on the White House staff to become Secretary of Defense.
His activities as Counsellor will include daily meetings
with the President to review current assignments and
events, daily senior White House staff meetings, Cabinet
- 2 -
meetings, congressional leadership meetings and
special projects at the personal direction of the
President.
As the official at the White House chiefly responsible
for liaison with the PFC, Secretary Morton will maintain
communication between the White House and the campaign
committee in order to minimize demands on Gerald R. Ford
as candidate and thereby to protect the time which he
requires for his essential duties and responsibilities
as President. In addition, the Secretary will attempt
to assure that campaign spokesmen for the candidate
accurately reflect the President's policies and
positions. As the principal liaison official at the
White House for the Republican National Committee,
Secretary Morton will screen and funnel requests and
information for the President in his traditional capacity
as leader of his Party. Only an individual in such an
official position can reflect the interests of the
Presidency in judging whether specific questions or
requests for the President's consideration from the
political committees and campaign workers actually
warrant the President's attention, and how they may be
disposed of without taking an undue amount of the
President's time.
Secretary Morton will continue to give specific substan-
tive input on various domestic, economic and energy
matters, many of which have been the focus of his atten-
tion as Secretary of the Interior and Secretary of
Commerce. As a member of the Economic Policy Board and
its Executive Committee, he will participate in their
daily meetings, as well as in the comment and review
process on current economic issues and proposed legisla-
tion. As a member of the Energy Resources Council and
its Executive Committee, he will attend weekly meetings
and participate with other Administration energy leaders
in the review of energy policy, existing programs and
proposed legislation.
Secretary Morton will continue to serve as a member of
the Domestic Council. In particular, he will participate
in various Domestic Council task forces and activities
relating to existing and proposed programs and legisla-
tive initiatives concerning issues such as water quality,
depletable mineral reserves, individual privacy, illegal
aliens and general revenue sharing.
.
FORD
LIBRARY
- 3 -
In the course of his official duties, Secretary Morton
will review proposed Presidential speeches, statements
and positions on issues, internal staffing memoranda
to the President and personnel appointments. Secretary
Morton will also participate in various public
appearances as they relate to the President's official
duties and the work of the Administration.
Apart from the aforementioned official duties, Secretary
Morton plans to spend time of his own participating in
campaign activities on behalf of the President. In
particular, Secretary Morton will participate in PFC
political strategy sessions, deliver political speeches,
attend PFC fundraisers and engage in other campaign
activities. Of course, any expenses incurred in relation
to such campaign activities will be paid by the PFC in
accordance with the Commission's proposed allocation
regulations.
In describing his duties, Secretary Morton stated, on
January 13, 1976:
"I think that the political duties will
be a concentration of the political duties
now being carried out by other members of
the staff. Dick Cheney has had a running
liaison communication with the campaign
community --- Bo Callaway's committee.
There has been a normal communication
between Bob Hartmann, for example, and
the National Committee.
"I think these duties would be concen-
trated into one shop, which I am very happy
to do, and I don't think they are incidental
in the sense of their importance, but I don't
think they are going to be overwhelming in
the sense of their consumption of time on my
part
"I am not going to get into the manage-
ment of the campaign. I have not thought of
that. However, I think the President has to
have some vehicle through which he can
communicate with the campaign and also as
FORD
STATES
AMERIT
- 4 -
party leader with the National Committee.
I am a very logical person, having been
Chairman of the National Committee and
having been involved in campaigns, to do
that.
*
*
*
"I think I am here as an overall adviser
to the President. The experience I have
had in the EPB -- the Economic Policy Board --
the energy field, the resource management
field in Government over the last five years --
previous to that on the Ways and Means Com-
mittee of the House of Representatives --
provides me with enough background to advise
the President in the overall sense, and to
take a matter that he can assign to me, look
at it, evaluate it and give him my best judg-
ment on whether it is a good way to go or
whether it should be a different way to go or
what have you. "
The question of whether to treat a portion of the
salaries of assistants to public officials, such as
Secretary Morton or administrative assistants to
incumbent Congressmen, Senators and Governors who
seek Federal elective office, as campaign expenditures
does not appear to be specifically addressed in either
the Federal election laws or the regulations that have
been proposed to date by the Commission. If the
Commission believes that such matters are affected by
the laws which it administers, it would seem appropriate
to have complete and permanent guidelines or regulations
on the subject which apply to all candidates similarly
involved.
However, inasmuch as the promulgation of such guidelines
or regulations may be a lengthy and slow process, we
request that the Commission issue an Advisory Opinion,
pursuant to Section 437f of Title 2, the United States
Code, with respect to the matters set forth herein. In
particular, we request the Commission to decide whether
any portion of the salaries of assistants to public
officials, such as Secretary Morton, should be considered
as expenditures within the meaning of 18 U.S.C. 591 (f) or
FORD
- 5 -
any other provision of the Federal election laws and,
therefore, must be reported for the purpose of
determining that a candidate has kept within his or
her expenditure limits.
As I indicated to you at our meeting, the President has
directed that his campaign be conducted in full compliance
with both the letter and the spirit of the election laws.
Accordingly, I can assure you that the White House and
the President Ford Committee will abide by such opinion
as the Commission may issue in this matter. Also, if it
is determined that some portion of the salary of public
officials such as Secretary Morton is to be treated as
an expenditure under the Federal election laws, the
President Ford Committee will then reimburse the Treasury
of the United States for such amount, in a manner that is
consistent with applicable Federal law, including
18 U.S.C. 209.
Due to the importance of this issue, we request that
the Commission expedite to the greatest extent possible
this request for an Advisory Opinion.
Sincerely,
They W.Buchen
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D. C. 20463
R. FORD 15kg
THE WHITE HOUSE
WASHINGTON
3
March 12, 1976
MEMORANDUM FOR:
ROGERS MORTON
FROM:
PHIL BUCHEN
T.
Attached is a memo which came to me from a young
friend of mine. I pass it on to you for whatever
value you may see in it.
Attachment
STATE E. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
marking keep)
March 15, 1976
MEMORANDUM FOR:
ROGERS MORTON
FROM:
PHIL BUCHEN
T.
Attached is a letter from Virginia Kelly dealing
with suggestions which may be of concern to you.
Attachment
FORDS 03 LIBRAL LIVE
THE WHITE HOUSE
WASHINGTON
March 15, 1976
Dear Virginia:
Many thanks for your thoughtful letter
which you sent me following our conversation
at the Finnish Embassy dinner.
I am passing on your suggestions so that
they can be given careful consideration.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
Mrs. Virginia Weldon Kelly
Virginia Weldon Kelly News Service
3930 Connecticut Avenue, N. W.
Washington, D. C. 20008
of
THE
FORM
file
THE WHITE HOUSE
WASHINGTON
April 8, 1976
ADMINISTRATIVELY CONFIDENTIAL
MEMORANDUM FOR:
PHILIP BUCHEN
FROM:
JAMES E. CONNOR
JEE
SUBJECT:
Freedom of Information Act Request by
Common Cause to Obtain Information
Concerning Political and Official Travel
Of Rogers C. B. Morton While Serving
on the White House Staff
The President reviewed your memorandum of April 5 on the
above subject and approve d the following:
Option 1 - Decline to respond to this request
on the grounds that we are not legally obligated
to do SO.
Please follow-up with appropriate action.
CC. Dick Cheney
FORD & LIBRA SERVICE
11018 FILE
THE WHITE HOUSE
WASHINGTON
April 5, 1976
MEMORANDUM FOR: THE PRESIDENT
FROM:
PHILIP BUCHEN
SUBJECT:
Freedom of Information Act Request by
Common Cause to Obtain Information
Concerning Political and Official Travel
of Rogers C. B. Morton While Serving
on the White House Staff
Attached at Tab A is a copy of the above-described request.
Common Cause requests information regarding the following:
(1) communication between Mr. Rogers C. B. Morton
and the White House concerning domestic travel
by Mr. Morton, or his predecessor in office.
(2) communication between Mr. Morton and the President
Ford Committee concerning domestic travel by
Mr. Morton, or his predecessor in office.
(3) travel schedules from trips taken by Mr. Morton,
or his predecessor in office, including
(a) the dates of such trips;
(b) the destination of such trips, including the
city and state;
(c) audiences addressed, if any speeches were
made; and
(d) meetings attended, including the identities
of those in attendance.
FORD LIBRARY
(4) the cost of each trip.
-2-
(5) the person or group which paid for each trip.
The request is similar to that which has come to each of the other
Cabinet Officers, and the respective Departments involved have
responded to such requests with documents from their records
delineating domestic official and political travel actually taken by
the Cabinet Officers. These records include those involving
Rogers Morton's travel while he was Secretary of the Interior or
Secretary of Commerce. The Cabinet Departments are legally
required to comply with the Freedom of Information Act request.
There is no written communication regarding points No. (1) and
No. (2) above, and the only records concerning Rogers' official
and political travel at the White House are those starting January 1,
1976.
We have consistently taken the position that White House records
are not subject to the Freedom of Information Act, and we believe
we are not legally required to respond to this request. However,
a decision should be made as to whether we should nevertheless
make the information available to the requesting party or, in the
alternative, make it generally available through the Press Office.
The following options which are available are:
1.
Decline to respond to this request on the grounds that we are
not legally obligated to do SO.
Pro
This is a position consistent with one we have taken before
and which we will want to preserve.
Con
Failure to supply the information may result in a court
test or an effort to secure an amendment to the Freedom
of Information Act which would clearly put the White House
within the scope of the Act.
GEBALD FORD LIBRARY
-3-
Failure to disclose the information may be regarded
as inconsistent with your policy of operating an "open"
Administration when it could be argued that the public
should have as much right to know about Rogers Morton's
travel as it has to know about the travel of your other
Cabinet Officers, particularly insofar as it relates to
political activities.
2.
Make a voluntary response to the requesting party with a clear
indication that the information is not being furnished as a
matter of compliance with the Freedom of Information Act, but
merely as an exercise of your discretion in the matter.
Pro
Avoids the objections to Option 1 while still preserving our
legal position under the Freedom of Information Act.
Con
If distribution of the information is limited to the requesting
party, it may be regarded as a de facto compliance with
the Freedom of Information Act.
Disclosure of the information could stimulate charges that
Rogers Morton has been occupied in electioneering activities
while on the White House payroll to a much greater degree
than was indicated when his appointment to a White House
position was made and was defended on the basis he would
be spending a normal amount of time on government-related
activities, devoting only "his own time" to electioneering
activities. In fact, Rogers has on the average spent over
a third of his total time on "political" trips.
3.
Release the information in a general way through the Press
Office in lieu of a direct response to the requestor of the
information.
Pro
Avoids any implication that we are complying with the
Freedom of Information Act.
STATE FORD LIBRARY
- -4-
Con
Same as under Option 2.
RECOMMENDATIONS
Option 1
Decline to respond to this request on the grounds that we are not
legally obligated to do SO.
APPROVE
DISAPPROVE
Option 2
Make a voluntary response to the requesting party with a clear
indication that the infor mation is not being furnished as a matter of
compliance with the Freedom of Information Act, but merely as an
exercise of your discretion in the matter.
APPROVE
DISAPPROVE
Option 3
Release the information in a general way through the Press Office
in lieu of a direct response to the requestor of the information.
APPROVE
DISAPPROVE
FORD
FORM
THE WHITE HOUSE
WASHINGTON
April 2, 1976
MEMORANDUM FOR:
JIM CONNOR
FROM:
PHIL BUCHEN T.
SUBJECT:
Freedom of Information
Request
Kindly give me your comments and suggestions
on the attached before it is typed in final
form.
I would appreciate hearing from you this
afternoon.
Attachment
3
FORD
CERTIFICATE
THE WHITE HOUSE
WASHINGTON
March 18, 1976
MEMORANDUM FOR
BARRY ROTH
FROM
KENT KAHLE KL
Attached are copies of the itineraries, reimbursements, memos
and vouchers which have been requested by Common Cause.
The following additional information may be of assistance:
1. I have no written communication with Warren Hendricks
or the President Ford Committee concerning Mr. Morton's
domestic schedule.
2. All trips, except for New York on February 5, Columbus
on March 1, and Talbot County Farm Bureau on March 10
(voucher copies attached) are political.
3. All political trips were paid by the sponsoring group or the
President Ford Committee. All airfares to political
events were paid by me and reimbursed by the President
Ford Committee.
Airfares:
Kansas City
- $250.73
Cincinnati
- 140.73
Bergen County, N.J.
- 47.37
New Hampshire
- 117.36
North Carolina/Florida
- 400.57
Illinois
- 195.73
Most hotel bills were paid by the local PFC representative or field
office, and I have no record of such expenses.
FORD LIBRARY
DRAFT
MEMORANDUM FOR:
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
It should be noted that the attached list of Morton's travel schedule
includes the cost estimates submitted only by Kent Kahle, Mr.
Morton's aide. The "political" cost figures (at Tab A) represent
only Kahle's out-of-pocket expenses made on Morton's behalf while
on trips billed as political. In no way do the cost estimates accurately
describe the total amounts spent for Morton's political trips. Local
PFC groups and the PFC in Washington covered the costs of most of
his political trips (hotels, meals, etc.) and Morton's office has
no record of which group spent what amounts on his behalf.
It should also be noted that while many of his trips were organized and
billed as "political", there were numerous occasions when Morton
participated in "official" functions along the way - e.g., stopping to
address a small Rotary Club while en route to a major PFC fund-
it 15 my understanding that
raiser. The costs were not apportioned and the PFC paid for the entire
trip.
BEALS 1. FORD LIBRARY
-2-
KentKahle estimated that of Morton's total time spent here at the
White House, half of it was concerned with "official" functions (staff
meetings, press briefings, EPB, Domestic Council, etc.). If that
figure is anywhere close to accurate, that would mean that given the
amount of time spent by Morton on "political" travel (25-45%) (at Tab B),
it would be very difficult to substantiate the 40-hour "official" work
weeks that were originally used to justify Morton being on the White
House rolls. For example, in the first 15 days of March, out of a
total of 11 possible wo rk days (Saturdays and Sundays excluded),
Morton spent 5 or 45% of those days away from the White House on
"political" travel. That would mean that of the remaining 6 possible
work days, using 8 hour days, Morton would have had to have spent
approximately 14 hours on each of those 6 days on "official" business.
Given Kahle's estimate that half of each day at the White House is
spent on political events, that would mean Morton would have had to
put in impossible 28 -hour work days for the time he spent in Washington.
Morton's entire travel schedule for February and March 1-15 is attached
at Tab C.
While press release detailing who paid for which of Morton's trips
would reveal that the White House and PFC have strictly complied
with the FEC rulings is as much as all but four of the trips were paid
FORD LIBRARY
-3- - -
for by the PFC. It is apparent that we have "bent over backwards"
to ensure that there could not even be the appearance of the White House
paying for "political" travel.
However, such a press release responding in essence to the questions
raised by the Common Cause letter regarding Morton's travel (at
Tab D) would necessarily reveal information which would make our
previous assertions regarding how Morton spent his time as a
Presidential counsellor extremely hypocritical.
FORD
LIBRARY
ROGERS C.B. MORTON/SCHEDULE
FORD OTHER
Official Trips
February
(Vouchers Submitted)
2
Townsend, Md., Address McDonough School
$ ?
5
New York, Address West Side Association
of Commerce
69.75
March
1
Columbus, Ohio, Address Rotary-Kiwanis
118.73
10
Easton, Md., Address Talbot County Farm
Bureau
27.70
Total cost
$ ?
Political Trips
February
(Kahle's Expenses)
7
Kansas City, Address Lincoln Club
$250.73
11-12 Cincinnati, Address Hamilton County Lincoln
Day (Depart White House 3 p.m. on 2/11)
(Arrive White House 12 p.m. on 2/12)
140.73
13
Bergen County, New Jersey, Address Lincoln
Day (Depart White House 4 p.m., return
D.C. 11 p.m.)
47.37
17-20 New Hampshire, Various PFC events (Depart
D.C. 8 a.m.; return D. C. 6 p. m.)
117.36
March
4
North Carolina, Various PFC events
(Depart D.C. 9:30 a. m.)
48.37
5
Florida, Various PFC events
227.48
6
Palm Beach, Fla., Address Lincoln
Day Rally
10.50
7
Hobe Sound, Fla., PFC Fund-raiser
?
8
Fla., Various PFC Fund-raisers (Return
D.C. 9:30 p.m.)
114.22
11
Illinois, Various PFC events (Depart D.C.
10 a. m.)
12
Illinois, Various PFC events (return D. C.
195.7 27.70 GERAID FORD LIBRARY
7:30 p.m.)
Total cost $ ?
February
March (1-15)
Total possible "work" days
20
11
Total days spent traveling
6
7
Total days spent traveling - "political"
5
5
- "official"
1
2
Total travel/possible work days
30%
60%
Total "political" travel/possible work days
25%
45%
Total "official" travel/possible work days
5%
15%
FORD LIBRARY
ROGERS C. B. MORTON/SCHEDULE
FEBRUARY
(Organized as)
Sunday
1
2
Townson, Md., Address McDonogh School
(Depart White House 5:30 P.M.)
Official
3
4
5
New York, Address West Side Association of
Commerce (left White House at 4 P. M. )
Official
6
(Arrived White House 12 Noon)
Saturday
7
Kansas City, Address Lincoln Club
Political
Sunday
8
9
10
11
Cincinnati, Address Hamilton County Lincoln
Day (Depart White House 3 P. M.)
Political
12
(Arrives White House 12 P.M.)
13
Bergen County, New Jersey, Address
Lincoln Day (Depart White House 4 P.M.
return D. C. 11 P.M.)
Political
Saturday
14
Sunday
15
16
17
New Hampshire (Depart D.C. 8 A.M.)
Political
18
New Hampshire )
Political
Various PFC events
19
New Hampshire)
Political
20
New Hampshire (Return D.C. 6 P.M.)
Political
Saturday
21
Sunday
22
23
24
25
26
27
Saturday
28
Sunday
29
FORD
LIBRAY
ROGERS C. B. MORTON/SCHEDULE
MARCH
(Organized as)
1
Columbus, Ohio; Address Rotary-Kiwanis
(Depart White House at 9 A.M. - Return
at 4 P. M.)
Official
2
3
4
North Carolina; Various PFC Events
(Depart D. C. 9:30 A.M. )
Political
5
Florida; Various PFC Events
Political
Saturday
6
Palm Beach, Florida; Address Lincoln
Day Rally
Political
Sunday
7
Hobe Sound, Florida; PFC Fund-raiser
Political
8
Florida; Various PFC Events (Return D.C.
9:30 P. M.)
Political
9
10
Easton, Md; Address Talbot County Farm
Bureau (Depart D.C. 9 A.M. - return
9:30 P.M.)
Official
11
Illinois; Various PFC Events (Depart
D.C. 10 A.M.)
Political
12
Illinois; Various PFC Events (Return
D.C. at 7:30 P.M.)
Political
Saturday
13
Sunday
14
15
16
17
18
19
Saturday
20
Sunday
21
22
23
24
25
26
Saturday
27
Sunday
28
29
FORD LIBRERY
30
31
John W. Gardner. Chairman
(202) 833-1200
March 15, 1976
Mr. Richard Parsons
Room 216
Old Executive Office Building
Washington, D.C. 20501
FREEDOM OF INFORMATION ACT REQUEST
Dear Mr. Parsons:
Pursuant to the Freedom of Information Act, 5 U.S.C.
552, I hereby request a copy of, or access to, all documents,
correspondence, memoranda or other writings relating to the
following matters:
1. communication between Mr. Rogers C. B. Morton
and the White House concerning domestic travel
by Mr. Morton, or his predecessor in office.
2. communication between Mr. Morton and the President
Ford Committee concerning domestic travel by Mr.
Morton, or his predecessor in office.
3. travel schedules from trips taken by Mr. Morton,
or his predecessor in office, including
a. the dates of such trips;
b. the destination of such trips, including the
city and state;
C. audiences addressed, if any speeches were
made; and
d. meetings attended, including the identities
of those in attendance.
4. the cost of each trip.
5. the person or group which paid for each trip.
FORD
Page two
March 15, 1976
This request covers all documents, correspondence,
memoranda or other writings relating to the above-enumerated
items between the dates of January 1 through June 1, 1975, and
between January 1, 1976 through the date of this request,
March 15, 1976. I realize that the President Ford Committee
was not in existence between January 1 and June 1, 1975.
I wish to clarify that I am not requesting any
recommendations or opinions expressed in any communications
between Mr. Morton and the White House. I want only infor-
mation concerning Mr. Morton's domestic travel.
If you determine that some parts of the requested
information are exempt from release, please advise me as to
which exemption you believe covers the material you are not
releasing. I, of course, reserve my right to appeal any
decision to withhold all or part of the requested information.
If any expenses in excess of $50.00 are incurred in
connection with this request, please inform me of all such
charges prior to their being incurred for my approval. If I
do not receive a substantive reply within 10 days of the date
of this letter, I will deem my request denied.
Thank you for your attention to this matter.
Sincerely
David Cohen
President
DC:RS
STATE FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
January 30, 1976
Dear Chairman Curtis:
As I indicated at our meeting on January 19, the
purpose of this letter is to describe the assignments
and responsibilities it is planned that Secretary
Rogers Morton will assume when he is appointed to the
White House staff on February 2 as Counsellor to the
President.
Secretary Morton's responsibilities will focus on a
number of separate, but occasionally overlapping,
areas. These are:
1. Counsellor to the President with
Cabinet rank;
2. Principal White House official for
liaison with the President Ford
Committee (PFC) and the Republican
National Committee (RNC);
3. Member of the Economic Policy Board
(EPB), and the EPB Executive
Committee;
4. Member of the Energy Resources
Council (ERC), and the ERC Executive
Committee; and
5. Member of the Domestic Council.
As Counsellor, Secretary Morton will be one of four
Cabinet-level assistants appointed by the President
to provide a broad range of advice on such subjects
as the President may request. In this capacity, the
Secretary will be filling an advisory role that has
been vacant since Donald H. Rumsfeld left his position
on the White House staff to become Secretary of Defense.
His activities as Counsellor will include daily meetings
with the President to review current assignments and
events, daily senior White House staff meetings, Cabinet
FORD LIGRARY
- 2 -
meetings, congressional leadership meetings and
special projects at the personal direction of the
President.
As the official at the White House chiefly responsible
for liaison with the PFC, Secretary Morton will maintain
communication between the White House and the campaign
committee in order to minimize demands on Gerald R. Ford
as candidate and thereby to protect the time which he
requires for his essential duties and responsibilities
as President. In addition, the Secretary will attempt
to assure that campaign spokesmen for the candidate
accurately reflect the President's policies and
positions. As the principal liaison official at the
White House for the Republican National Committee,
Secretary Morton will screen and funnel requests and
information for the President in his traditional capacity
as leader of his Party. Only an individual in such an
official position can reflect the interests of the
Presidency in judging whether specific questions or
requests for the President's consideration from the
political committees and campaign workers actually
warrant the President's attention, and how they may be
disposed of without taking an undue amount of the
President's time.
Secretary Morton will continue to give specific substan-
tive input on various domestic, economic and energy
matters, many of which have been the focus of his atten-
tion as Secretary of the Interior and Secretary of
Commerce. As a member. of the Economic Policy Board and
its Executive Committee, he will participate in their
daily meetings, as well as in the comment and review
process on current economic issues and proposed legisla-
tion. As a member of the Energy Resources Council and
its Executive Committee, he will attend weekly meetings
and participate with other Administration energy leaders
in the review of energy policy, existing programs and
proposed legislation.
Secretary Morton will continue to serve as a member of
the Domestic Council. In particular, he will participate
in various Domestic Council task forces and activities
relating to existing and proposed programs and legisla-
tive initiatives concerning issues such as water quality,
depletable mineral reserves, individual privacy, illegal
aliens and general revenue sharing.
FORD
LIBRARY
- 3 -
In the course of his official duties, Secretary Morton
will review proposed Presidential speeches, statements
and positions on issues, internal staffing memoranda
to the President and personnel appointments. Secretary
Morton will also participate in various public
appearances as they relate to the President's official
duties and the work of the Administration.
Apart from the aforementioned official duties, Secretary
Morton plans to spend time of his own participating in
campaign activities on behalf of the President. In
particular, Secretary Morton will participate in PFC
political strategy sessions, deliver political speeches,
attend PFC fundraisers and engage in other campaign
activities. Of course, any expenses incurred in relation
to such campaign activities will be paid by the PFC in
accordance with the Commission's proposed allocation
regulations.
In describing his duties, Secretary Morton stated, on
January 13, 1976:
"I think that the political duties will
be a concentration of the political duties
now being carried out by other members of
the staff. Dick Cheney has had a running
liaison communication with the campaign
community -- Bo Callaway's committee.
There has been a normal communication
between Bob Hartmann, for example, and
the National Committee.
"I think these duties would be concen-
trated into one shop, which I am very happy
to do, and I don't think they are incidental
in the sense of their importance, but I don't
think they are going to be overwhelming in
the sense of their consumption of time on my
part.
"I am not going to get into the manage-
ment of the campaign. I have not thought of
that. However, I think the President has to
have some vehicle through which he can
communicate with the campaign and also as
FORD
- 4 -
party leader with the National Committee.
I am a very logical person, having been
Chairman of the National Committee and
having been involved in campaigns, to do
that.
*
*
"I think I am here as an overall adviser
to the President. The experience I have
had in the EPB -- the Economic Policy Board ---
the energy field, the resource management
field in Government over the last five years --
previous to that on the Ways and Means Com-
mittee of the House of Representatives --
provides me with enough background to advise
the President in the overall sense, and to
take a matter that he can assign to me, look
at it, evaluate it and give him my best judg-
ment on whether it is a good way to go or
whether it should be a different way to go or
what have you.
The question of whether to treat a portion of the
salaries of assistants to public officials, such as
Secretary Morton or administrative assistants to
incumbent Congressmen, Senators and Governors who
seek Federal elective office, as campaign expenditures
does not appear to be specifically addressed in either
the Federal election laws or the regulations that have
been proposed to date by the Commission. If the
Commission believes that such matters are affected by
the laws which it administers, it would seem appropriate
to have complete and permanent guidelines or regulations
on the subject which apply to all candidates similarly
involved.
However, inasmuch as the promulgation of such guidelines
or regulations may be a lengthy and slow process, we
request that the Commission issue an Advisory Opinion,
pursuant to Section 437f of Title 2, the United States
Code, with respect to the matters set forth herein. In
particular, we request the Commission to decide whether
any portion of the salaries of assistants to public
officials, such as Secretary Morton, should be considered
as expenditures within the meaning of 18 U.S.C. 591 (f) or
FORD
5
any other provision of the Federal election laws and,
therefore, must be reported for the purpose of
determining that a candidate has kept within his or
her expenditure limits.
As I indicated to you at our meeting, the President has
directed that his campaign be conducted in full compliance
with both the letter and the spirit of the election laws.
Accordingly, I can assure you that the White House and
the President Ford Committee will abide by such opinion
as the Commission may issue in this matter. Also, if it
is determined that some portion of the salary of public
officials such as Secretary Morton is to be treated as
an expenditure under the Federal election laws, the
President Ford Committee will then reimburse the Treasury
of the United States for such amount, in a manner that is
consistent with applicable Federal law, including
18 U.S.C. 209.
Due to the importance of this issue, we request that
the Commission expedite to the greatest extent possible
this request for an Advisory Opinion.
Sincerely,
They W.Buslen They
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D. C. 20463
FORDO
:
THE WHITE HOUSE
WASHINGTON
Date 4/7/76
TO: Phil Buchen
FROM:
BARRY ROTH
1 FORD LIBRARY
ACTION:
Approval/Signature
Comments/Recommendations
For Your Information
REMARKS:
As we discussed, an argument can
be made against us that such
document, required "y law to
be Kept are subject to the FOIA
and that at least certain
portions of the permanent state,
cubunits; e.g., accounting are identifiable
Bary
As ATTORNEY GENERAL
Department of Justice
Washington, D.C. 20530
FEB 29 1975
MEMORANDUM FOR THE HONORABLE PHILIP W. BUCHEN
Counsel to the President
Re: Applicability of the Freedom of Information
Act to the White House Office
This is in reply to your recent request for our
views regarding the applicability of the Freedom of
Information Act (FIA), as amended, to the White House
Office.
Summary
The legislative history of the Freedom of Informa-
tion Act Amendments of 1974 makes clear that some
entities within the Executive Office of the President
are not "agencies" for purposes of the FIA; but it does
not provide clear guidelines for determining which they
are. In our opinion, it is proper to conclude that
generally speaking the components of the White House
Office, in the traditional or budgetary sense, are not
"agencies." The more difficult questions relate to the
status of other entities within the Executive Office,
such as the Domestic Council or the National Security
Council.
Statutory Provisions
Prior to adoption of the 1974 Amendments, coverage
under the FIA, 5 U.S.C. 552(b), depended entirely upon
the definition of "agency" contained in the Administra-
tive Procedure Act (of which the FIA is a part). The
APA definition is not particularly helpful with respect
to the present issue. That definition (5 U.S.C. 551(1))
reads as follows:
FORD
LIBRARY
(1) 'agency' means each authority of the
Government of the United States, whether or not
it is within or subject to review by another
agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C)
(H) [six other specific excep-
tions, none of which refers to the
President or the White House Office].
The 1974 Amendments, which took effect on February 19,
1975, add a special definition of "agency" applicable
only to the FIA portion of the APA. Section 3 of the
Amendments adds the following provision to 5 U.S.C. 552:
(e) For purposes of this section, the term
'agency' as defined in section 551 (1) of this
title includes any executive department, mili-
tary department, Government corporation,
Government controlled corporation, or other
establishment in the executive branch of the
Government (including the Executive Office of
the President), or any independent regulatory
agency.
While the statutory language itself does not differenti-
ate among the various parts of the Executive Office of
the President, the legislative history makes clear that
some parts are not intended to be covered. Before turn-
ing to the legislative history, it is necessary to
discuss the most prominent feature in its background,
which was a District of Columbia Circuit Court decision
under the original definition of "agency."
Soucie V. David
Soucie V. David, 448 F.2d 1067 (D.C. Cir. 1971),
involved an FIA request for a document of the Office of
Science and Technology (OST), a unit within the Executive
Office of the President, but not part of the White House
Office. The principal issue in the case was whether OST
was an "agency" within the meaning of 5 U.S.C. 551(1).
FORD
- 2 -
GREATE
LIBRARY
In resolving this issue in the affirmative, the
court adopted a functional approach to the Act. 1/ It
stated that "the APA apparently confers agency status on
any administrative unit with substantial independent
authority in the exercise of specific functions." 448
F.2d at 1073 (footnote omitted). The court's reasoning
with respect to OST was explained, in part, as follows:
If the OST's sole function were to advise
and assist the President, that might be taken
as an indication that the OST is part of the
President's staff and not a separate agency.
In addition to that function, however, the OST
inherited from the National Science Foundation
the function of evaluating federal programs.
When Congress initially imposed that duty on
the Foundation, it was delegating some of its
own broad power of inquiry in order to improve
the information on federal scientific programs
available to the legislature. When the respon-
sibility for program evaluation was transferred
to the OST, both the executive branch and mem-
bers of Congress contemplated that Congress
would retain control over information on fed-
eral programs accumulated by the OST, despite
any confidential relation between the Director
of the OST and the President- a relation that
might result in the use of such information as
a basis for advice to the President. By virtue
1/ In a recent case involving the applicability of the
FIA to certain advisory committees of the National
Institute of Mental Health, the court, in holding that
the advisory groups are not "agencies," used a similar
functional approach. Washington Research Project, Inc.
V. Department of Health, Education and Welfare, 504 F.2d
238, 246 (D.C. Cir., 1974).
FOAD
- 3 -
BERALA
ANNUSIT
of its independent function of evaluating fed-
eral programs, the OST must be regarded as an
agency subject to the APA and the Freedom of
Information Act. 448 F. 2d at 1975 (footnotes
omitted).
Thus, the principal basis of the court's decision was the
fact that OST was not limited to advising and assisting
the President, but also had an independent power dele-
gated by Congress
The legislative history of the 1974 Amendments
The bill to amend the FIA reported by the House
Committee on Government Operations in March 1974 con-
tained a provision regarding the meaning of "agency"
which was essentially the same as the provision ulti-
mately enacted. 2/ H.R. Rep. No. 93-876, 93d Cong., 2d
Sess. (1974), p. 29. Like the enacted provision, the
House version expressly referred to the "Executive
Office of the President. "
The expanded definition of "agency" was explained
as follows in the House report (p. 8) :
For the purposes of this section, the defi-
nition of 'agency' has been expanded to include
those entities which may not be considered
2/ The only difference between the House version and
the final version related to the introductory phrase.
The House version stated: "Notwithstanding section
551 (1), for purposes of this section, the term 'agency'
means any executive department [etc. ]." The pro-
vision which was enacted states: "For purposes of this
section, the term "agency" as defined in section 551(1)
of this title includes any executive department
[etc. ]
- 4 -
FORD
LIBRAST
agencies under section 551(1) of title 5, U.S.
Code, but which perform governmental functions
and control information of interest to the
public. The bill expands the definition of
'agency' for purposes of section 552, title 5,
United States Code. Its effect is to insure
inclusion under the Act of Government corpora-
tions, Government controlled corporations, or
other establishments within the executive
branch, such as the U.S. Postal Service.
The term 'establishments in the Executive
Office of the President,' as used in this
amendment, means such functional entities as
the Office of Telecommunications Policy, the
Office of Management and Budget, the Council of
Economic Advisers, the National Security
Council, the Federal Property Council, and
other similar establishments which have been or
may in the future be created by Congress
through statute or by Executive order.
Thus, the report's explanation did not refer to the
President or to the White House Office. It should be
noted that the Department of Justice had sent the House
committee a bill report which asserted that it would be
unconstitutional for Congress to extend the FIA to the
President's staff. House report, P. 20.
During House debate on the bill, Congressman
Erlenborn paraphrased the committee report's discussion
of the Executive Office of the President. Then he asked
the floor manager, Congressman Moorhead, if it was cor-
rect that "it [the bill's definition of agency] does not
mean the public has a right to run through the private
papers of the President himself." 120 Cong. Rec. H 1789
(daily ed., Mar. 14, 1974). Congressman Moorhead
replied that Congressman Erlenborn's view was correct,
i.e., that no right of access to the private papers of
the President was intended. The precise meaning of this
exchange is not entirely clear. However, taken in con-
- 5
FORD
GREAT
LIBRARY
nection with the silence of the House report regarding
the President, the exchange should establish that the
House bill was not intended to make the FIA applicable
to the President himself.
The bill reported by the Senate Judiciary Commit-
tee expanded the existing definition of "agency" in
some respects (e.g., by adding an express reference to
the Postal Service), but did not deal expressly with
the status of the Executive Office of the President.
The Senate report did refer, with approval, to the
decision in Soucie V. David. S. Rep. 93-854, 93d Cong.,
2d Sess. (1974), p. 33.
The only other pertinent item in the legislative
record is the conference report, S. Rep. No. 93-1200,
93d Cong., 2d Sess. (1974), pp. 14-15. That report
described the differences between the House and Senate
provisions regarding "agency" and stated (p. 14) that:
"The conference substitute follows the House bill." It
then continued (p. 15):
With respect to the meaning of the term
'Executive Office of the President' the con-
ferees intend the result reached in Soucie V.
David, 448 F.2d 1067 (C.A.D.C. 1971). The
term is not to be interpreted as including
the President's immediate personal staff or
units in the Executive Office whose sole func-
tion is to advise and assist the President.
Apparently, the conference committee read Soucie
to mean that, if the functions of OST had been limited
to advising and assisting the President, OST records
would not have been subject to the FIA. The correctness
of this interpretation of Soucie is questionable, for
the court specifically stated that it found it unneces-
sary to decide that issue. 448 F. 2d at 1073. Still,
the main consideration here is not what the Soucie court
stated, but what Congress intended.
- 6 -
FORD
LIED
Interpreting the legislative history
It can be argued that on the point at issue here
the language of the 1974 Amendments ("any
estab-
lishment in the executive branch of the Government
(including the Executive Office of the President)") is
absolutely clear and thus permits no resort to legisla-
tive history. See, e.g., Caminetti V. United States,
242 U.S. 470, 490 (1917). If the parenthetical phrase
'(including the Executive Office of the President)"
clearly modified the word "establishment," that might be
the case. However, its position in the sentence indi-
cates that it modifies the word "Government" which
would leave for determination what units, within the
Executive Office of the President, constitute "estab-
lishments" within the meaning of the Act, compelling
examination of evidence of legislative intent. More-
over, any reading which would place the entire Executive
Office within the Act would include the President him-
self, who is the head of that office; and since this
would raise the most serious constitutional questions,
an interpretation would be sought to avoid it--again
compelling resort to legislative history. In short, we
have no doubt that courts will not adopt the blanket
view that all parts of the Executive Office are covered
but will examine the legislative history to clarify the
point.
The exact meaning of the legislative history, as
described above, is unclear. As noted, the House report
listed a number of entities within the Executive Office
that were to be covered by the bill ("the Office of
Telecommunications Policy, the Office of Management and
Budget, the Council of Economic Advisers, the National
Security Council, the Federal Property Council, and
other similar establishments"). The conference report
took an entirely different approach to the issue, seek-
ing to clarify the meaning of "Executive Office" by
principle rather than by example. The term "Executive
Office" was not meant to include "the President's
immediate personal staff or units
whose sole
-
FORD
- 7 -
1
function is to advise and assist the President." Be-
cause of this basic difference in approach, it is
impossible to tell whether the conference committee
agreed or disagreed with the House report. Tending to
show agreement is the statement in the conference
report that "the conference substitute follows the
House bill"--but this is a reference to the language of
the bill, and goes no further than the statute itself
toward showing that the House committee's intent was
adopted. This issue of the relationship between the
House and conference committee reports is relevant but
not crucial to the present determination; it will be
absolutely central when we come to consider the status
under the Act of units named in the House report.
Constitutional Considerations
It is a settled rule of statutory construction that
an interpretation that raises substantial constitutional
questions will not be adopted where another reading of
the statute is possible. See, e.g., Crowell V. Benson,
285 U.S. 22, 66 (1932). This principle is pertinent
here. For the Congress to subject the President, or
that portion of the Executive Office that functions as
a mere extension of the President, to the requirements
of the FIA (including its provisions for judicial
review) seems inconsistent with the doctrine of separa-
tion of powers. Cf. Myers V. United States, 272 U.S.
52 (1926). Moreover, the exemptions of the FIA do not
necessarily correspond to the scope of Executive
privilege, a privilege grounded on the Constitution.
United States V. Nixon, 42 Law Week 5237 (1974).
Finally, the practical burdens resulting from applica-
tion of the FIA to the President and his staff,
including the provisions for judicial review and sanc-
tions, might unduly interfere with the President's duty
under Article II, § 3 to execute the laws.
These considerations weigh heavily against any
interpretation of "agency"--if another is feasible under
the statute and its history--which would apply it to
what might be termed the nucleus of the Presidency.
- 8 -
FORD
General Conclusions
On the basis of the language of the statute, its
legislative history (which includes reliance upon the
Soucie case) and the constitutional issues involved, we
are of the view that the following factors should be
determinative of whether a unit within the Executive
Office is covered by the Act:
1. Functional proximity to the President. A
unit such as the Office of Telecommunications
Policy, which ordinarily reports through one or
another Presidential Assistant, is more likely to
be covered than a unit such as the Domestic
Council, which has regular direct access.
2. Authority to make dispositive determina-
tions. A unit such as OMB, which regularly makes
Executive branch decisions is more likely to be
covered than a unit such as the Council of Eco-
nomic Advisers, which only makes recommendations
to the President.
3. Constitutional basis for the functions
performed. A unit such as the Office of Eco-
nomic Opportunity, which is meant to achieve
goals established under the Constitution by the
Congress, is more likely to be covered than a
unit such as the National Security Council,
which performs a function directly assigned to
the President by the Constitution.
4. Manner of creation. A unit such as the
Council on Environmental Quality, originally
established by statute, is more likely to be
covered than a unit such as the Federal Property
Council, established by Executive Order on the
basis of inherent Presidential authority.
Needless to say, no single one of these factors is
determinative.
E.
- 9 -
FORD
GRAND
The status of the White House Office
Your immediate inquiry is whether the "White
House Office" is covered by the Act. We are not en-
tirely clear what that phrase is meant to include. The
United States Government Manual (1974-75) lists offi-
cials who are in the White House Office (p. 81) and
contains a chart (copy attached) showing the relation
of that Office to other parts of the Executive Office
of the President (p. 80). The Executive Office Appro-
priation Act for 1975 (and for prior years) contains
a separate line item for that unit. 3/ Public Law 93-
381 (1974), Title III. However, more recently, a
revised chart showing the organization of the "White
House Staff" was issued (copy attached). 4/ That chart
does not use the term "White House Office," and appears
to give parallel treatment to units that are in our
view not at all comparable for present purposes. We
assume that your inquiry relates to the White House
Office as shown in the Government Organization Manual
and as separately funded in the Budget.
It is clear from the legislative history that the
FIA does not embrace the "President's immediate personal
staff." This phrase is used in the conference report,
but is not explained. Presumably, it means that records
maintained in the President's own offices or maintained
3/ Other line items within the Executive Office in-
clude the CEA, Domestic Council, NSC, OMB and OTP.
41 10 Weekly Compilation of Presidential Documents
1588-89 (Dec. 23, 1974).
- 10 -
FORD
THE
5/
by his closest aides are beyond the scope of the FIA.
This would seem to include the records of the four
cabinet-rank advisers listed on the recent chart
(Messrs. Buchen, Hartmann, Marsh and Rumsfeld); and
those of the units listed as White House Operations,
Counsellor to the President (Mr. Marsh), Office of
the Press Secretary, Counsellor to the President
(Mr. Hartmann), and Office of the Counsel. It would
appear that the White House Office includes all of the
aforementioned entities. They all perform staff func-
tions for the President, and they do not appear to have
OST-type independent functions. In our view they all
must be considered as "advising and assisting" the
President, even if that phrase is narrowly construed.
5/ That the President himself is not an "agency" for
purposes of the FIA should follow, a fortiori, from the
expressed intent to exclude the President's immediate
staff. See also the Erlenborn-Moorhead exchange (dis-
cussed above).
It may also be noted that the recent opinion of the
U.S. District Court for the District of Columbia (Judge
Richey), dealing with access to White House tapes and
other material compiled during the Nixon Administration,
stated that the "Office of the President" is not an
"agency" and that records of the "President and his
immediate aides" are not subject to the FIA. Nixon V.
Sampson, Civ. Action No. 74-1518, D.D.C. (Jan 3, 1975),
P. 69. The court supported its conclusion by reference
to the legislative history of the 1974 Amendments, i.e.,
the conference report. (The effect of this opinion
has been stayed by the Court of Appeals.)
FOOD
- 11 -
We are expressing no opinion at the present
as to the application of the FIA to other units
the Executive Office, such as OMB, 6/ USC,
and the Domestic Council. Each of those units
considered separately, and the question can be
for consideration when requests addressed to each
them are received.
As a matter of sound planning, we urge that 50
steps be taken for the future:
(1) Any functions performed by those unit
described above as being within the White House nifted
which do not consist of "advising and assisting" the
President should, if possible, be located within another
Executive Office unit. If this is not possible. then
a segregable subunit of the White House Office mill
should be created.
6/ On February 19, 1975, OMB published an FLA vigutas
tion implementing the view that some, but not all, of
OMB's functions are subject to the FIA. See 40 Ful.
Reg. 7346, 7347.
7/ The recent FIA regulation published by the NSU staff
contains language which seeks to leave open the 1001
of coverage. See 40 Fed. Reg. 7316 (Feb. 19, 19/7/,
- 12 -
STATE 2 FORD
(2) The concept of a separate "White House Office"
should be fostered and strengthened in as many ways as
possible. Any future organizational charts should
clearly indicate the existence of such a unit separate
and apart from the rest of the Executive Office. Judi-
cial acceptance of such a functional division can
greatly simplify our FIA problems with respect to the
Executive Office.
Scalia
Assistant Attorney General
Office of Legal Counsel
FORD
- 13 -
President Ford Committee
1828 L STREET, N.W., SUITE 250, WASHINGTON, D.C. 20036 (202) 457-6400
April 9, 1976
MEMORANDUM
TO: Phil Buchen
FROM:
Tim Bob Ryan Visser of
RE: Proposed Answers to "Morton" Complaints
Attached hereto are two drafts of our answer to the
complaints filed with the FEC by the DNC and Mr. Harris.
Draft A is for all purposes a "Motion to Dismiss"
and does not address the substantive issues involved.
Draft B deals with the substantive issues raised by the
subject complaints.
Roy Hughes agrees with us that the most effective
answer would be Draft A. Your comments with regard to both
drafts would be appreciated.
T.T.R.
Enclosures
BERAU FORD LIBRARY
President Ford Committee
1828 L STREET, N.W., SUITE 250, WASHINGTON, D.C. 20036 (202) 457-6400
April 16, 1976
Michael Hershman, Esquire
Disclosure and Compliance Section
SERVICE R. FORD LIBRARY
The Federal Election Commission
1325 K Street, N. W.
Washington, D. C. 20463
RE: Secretary Rogers C. B. Morton
Dear Mr. Hershman:
The following request is hereby submitted regarding
the Commission's recent inquiry concerning the appointment
of Rogers C. B. Morton as Counsellor to the President. The
relevant facts with regard to Secretary Morton's appointment
were previously set forth in Mr. Philip Buchen's Advisory
Opinion Request (AOR) of January 30, 1976. We would, there-
fore, request that you consider the facts contained in that
submission during your deliberation of this matter.
Following the February 2, 1976 appointment of
Secretary Morton, two complaints were filed with the Commis-
sion pursuant to 2 U.S.C. $437g (a) (1) (A). These complaints,
filed by Fred R. Harris and the Democratic National Committee
(DNC), respectively, argue that Secretary Morton's duties
while at the White House raise legal questions as to the
propriety of governmental payments for his services. Neither
the Federal election campaign laws, Commission regulations,
proposed regulations, guidelines, or Advisory Opinions
specifically address the questions raised in these complaints.
After a thorough review of the issues raised in the
subject complaints, we submit that for the following reasons
the Commission must dismiss the complaints.
I.
THE COMMISSION LACKS SUBJECT MATTER JURISDICTION
Prior to any discussion of the merits of a complaint,
the Commission must first determine if it has subject matter
jurisdiction over the issues raised therein. We submit that
no such jurisdiction exists in this case. Section 437g (a) (1) (A)
of Title 2, United States Code, provides, inter alia, that
"[a]ny person who believes a violation of this Act
has
The President Ford Committee. Rogers C.B. Morton, Chairman, Robert C. Moot Treasurer A copy of our Report is filed with
the Federal Election ommission and is available for purchase from the Federal Election Commission = whington, D.C. 20463
Michael Hershman, Esquire
April 16, 1976
Page Two
occurred may file a complaint with the Commission. " In
addition, Section (a) (2) states:
"The Commission upon receiving any
complaint under paragraph (1) (A) or a
referral under paragraph (1) (B), or if it
has reason to believe that any person has
committed a violation of any such provisions,
shall notify the person involved in such
apparent violation and shall--
FORM
(B) make an investigation of such
apparent violation." 2 U.S.C. $437g (a) (2).
(emphasis added).
In his complaint, Mr. Harris argues that payment by
the White House of a salary to Secretary Morton for his
services as Counsellor to the President constitutes a misuse
of federally appropriated funds by the President. The com-
plaint does not allege a violation of the Federal election
campaign laws.
Similarly, the DNC complaint argues, among other things,
that "[t]he description of Mr. Morton's duties raises serious
legal questions as to the propriety of any governmental pay-
ments for his services."
Questions regarding the use or alleged misuse of
federally appropriated funds by a candidate or his principal
campaign committee do not fall within the jurisdiction of the
Commission. Such issues must be presented to a forum that is
statutorily empowered to address the question of federally
appropriated funds. Clearly, this is not within the scope of
the Federal election campaign laws and, therefore, may not be
considered by the Commission.
II. THE ISSUE IS MOOT
Secretary Morton was appointed to the White House staff
on February 2, 1976, as a Counsellor to the President. On
April 2, 1976, the Secretary resigned this position to become
Chairman of The President Ford Committee (PFC). Since the
Secretary is no longer receiving payments from federally
Michael Hershman, Esquire
April 16, 1976
Page Three
appropriated funds, the issue presented in the subject
complaints is now moot. Moreover, all future payments of
salary to Secretary Morton will be reported monthly by the
President Ford Committee as campaign-related expenditures.
The payment of salary to Secretary Morton for his services
as Counsellor to the President is no longer a question which
necessitates any action by the Commission. If, however,
the Commission decides that this issue is ripe for determina-
tion, the Commission should issue an Advisory Opinion as soon
as it has been restructured rather than continuing its
investigation of the unique issues presented by the complaints.
In conclusion, it is our position that the only proper
action for the Federal Election Commission to take at this
juncture is to dismiss the subject complaints.
Respectfully submitted,
Robat Pinser Robat
Robert P. Visser
JustiRya
CC: Philip Buchen, Esquire
John G. Murphy, Jr., Esquire
Thomas B. Curtis
Neil Staebler
Joan Aikens
Thomas Harris
Vernon Thomson
Robert Tiernan
BERALD FORD LIBRARY
THE WHITE HOUSE
Marlons mar
WASHINGTON
June 3, 1976
MEMORANDUM FOR:
BARRY ROTH
FROM:
PHIL BUCHEN P.
Please keep these transcripts in your files
in case they are still neeeded in connection
with the Rogers Morton matter.
Attachments
FORD LIBRARY
TION COMMISSION
FEDERAL ELECTION COMMISSION
1325 K STREET N.W.
UNITED S ATES OF AMERICA
WASHINGTON,D.C. 20463
July 26, 1976
Philip Buchen, Esquire
Counselor to the President
The White House
Washington, D. C. 20500
Dear Mr. Buchen:
The Federal Election Commission has directed me to
forward the attached Commission Action to you in
connection with its disposition of MUR 1976-77, together
with the concurring opinions of individual Commissioners.
Sincerely yours,
Murphy,
Attachment
TION
AMERICAN REVOLI INTENTENNAL
1776 1976
a
7/2"
BEFORE THE FEDERAL ELECTION COMMISSION
In the Matter of
)
)
President Ford Committee
)
MUR 077 (76)
(Morton)
)
COMMISSION ACTION
The Federal Election Commission has reviewed the compliants
in this matter and has concluded by a vote of 5-1 that there is no
reason to believe that any violation of the Federal Election Campaign
Act of 1971, as amended, has been committed. The Federal Election
Commission has accordingly voted, 6-0, to close the file in this
matter.
Secretary Marjoria to the Commission W. Emmons
DATE: July 26, 1976
STATE B. THE
Murphy
STATEMENT OF COMMISSIONER HARRIS
The question here presented is whether political activity
by a federal employee on behalf of a candidate for federal
office raises any issue within the purview of the Federal
Election Campaign Act and of this Commission. It is assumed
that the challenged political activity was carried on in part
during normal working hours. No assumption is made as to
whether time thus spent was made up by regular, non-political,
work outside of normal hours.
This issue has been raised in connection with the
executive branch of the government, including White House
also
staff, but has application too to congressional employees.
It will be considered in the context of the other statutes,
orders and rules which may bear upon it.
The political activity of federal employees is regulated
primarily by the Hatch Act, which forbids covered employees
from taking "an active part in political management or in
political campaigns." 5 USC $7324a. This statute applies
only to employees in the executive and not the legislative
branch of the government; and numerous categories of executive
branch employees are excluded from its reach, including "an
employee paid from the appropriation for the office of the
President." In any event, enforcement of the Hatch Act is
BERALD FORD LIBRARY
- 2 -
entrusted to the Civil Service Commission, not to this Com-
mission. See 5 USC $7325; U.S. Civil Service Commission V.
National Association of Letter Carriers, 412 U.S. 548, 574.
Executive Order 11222, "Prescribing Standards of Ethical
Conduct for Government Officers and Employees," contains
general language which might be stretched to cover political
activity in government offices, viz. Sec. 204:
"An employee shall not use federal property
of any kind for other than officially
approved activities."
Apparently, however, official approval could be urged as a
defense, and here again, this Order too is enforceable by the
Civil Service Commission, not by this Commission.
Another statute cited as barring federal employee
political activity, at least during normal working hours,
is 31 USC $628, which provides:
"Except as otherwise provided by law, sums
appropriated for the various branches of
expenditure in the public service shall be
applied solely to the objects for which they
are respectively made, and for no others."
This provision falls within the general investigative and
reporting functions of the Comptroller General. 31 USC $53.
Public Citizen and Ralph Nader have brought suit under $628
to bar the use of government employees to aid the re-election
campaigns of incumbent federal officeholders. The suit was
dismissed for lack of standing by the district court, but is
pending on appeal. (No. 74-2025, D.C. Cir. Argued Oct. 23,
FORD
1975). Here again, there is no suggestion that this Commis GLRALDO
LIBRARY
- 3 -
has any authority to enforce this statute.
Various provisions of the Rules of the two Houses of
Congress and of the Legislative Reorganization Act of 1946
(60 Stat. 812) also deal, though indirectly, with the issue
of political activities by congressional employees; and,
although those provisions are of course not administered by
this Commission, the interpretations the Houses have given
their rules do throw light on their practices and understandings
as to what is permissable. Rule 8 of House Rule XLIII provides:
"A Member of the House of Representatives
shall retain no one from his clerk hire
who does not perform duties commensurate
with the compensation he receives."
This rule has been interpreted by the House Committee on
Standards of Official Conduct as follows:
"As to the allegation regarding campaign
activity by an individual on the clerk
hire rolls of the House it should be noted
that due to the irregular time frame in
which the Congress operates, it is unreal-
istic to impose conventional work hours
and rules on Congressional employees. At
sometimes these employees may work more
than double the usual work week -- at
others, some less. These employees are
expected to fulfill the clerical work the
Member requires during the hours he requires
and generally are free at other periods.
If, during the periods he is free, he
voluntarily engages in campaign activity,
there is no bar to this. There will, of
course, be differing views as to whether
the spirit of this principle is violated
but this Committee expects Members of the
House to abide by the general proposition."
[Congressional Record (daily edition), H. 6053,
July 12, 1973].
FORD
- 4 -
This interpretation that congressional employees may engage
in campaign activity on their own time, and that such activity
even during normal working hours is permissible upon the
assumption that the lost time is made up, parallels the
interpretation this Commission's General Counsel has given
to the definition of "contribution" in the Federal Election
Campaign Act. See OC 1975-30 (March 22, 1976).
The Legislative Reorganization Act of 1946 (2 USC $72a (a) )
and the Rules of the House, Rule XI, clause 6 (a) (3) (B) and (c)
could be regarded as imposing an absolute ban on political
activity by professional staff members of standing committees,
as distinguished from the staff of individual legislators.
However, a study by the Congressional Research Service suggests
that these provisions were only meant to ban political activity
during normal working hours. See Maskell and Burdette,
Political Activity by Congressional Employees, (Feb. 26, 1976),
pp. 3-4.
Further light is shed on Congressional practice by
Rule XLIII of the Standing Rules of the Senate. It reads:
POLITICAL FUND ACTIVITY BY OFFICERS
AND EMPLOYEES
1. No officer or employee whose salary
is paid by the Senate may receive, solicit,
be the custodian of, or distribute any
funds in connection with any campaign
for the nomination for election, or the
election of any individual to be a Member
of the Senate or to any other Federal
office. This prohibition does not apply
to any assistant to a Senator who has been
FORD
LIERARY
- 5 -
designated by that Senator to perform any
of the functions described in the first
sentence of this paragraph and who is
compensated at a rate in excess of $10,000
per annum if such designation has been made
in writing and filed with the Secretary of
the Senate. The Secretary of the Senate
shall make the designation available for
public inspection.
The second sentence of this provision makes it absolutely clear
that, as far as the Senate is concerned, there is no bar to
political activity by senatorial assistants paid above
$10,000 per annum.
We come then to the question of the application of the
Federal Election Campaign Act to political activities of federal
employees on behalf of candidates for federal office.
The most elaborate presentation made in support of the
complaints is the memorandum amicus curiae filed by Public
Citizen. (This organization, as noted, is also engaged in
attempting to litigate the applicability of 31 USC §628 to
federal employee political activity).
Public Citizen argues that "government payment of the
salary of an official who spends a substantial part of his
working hours campaigning" is a "contribution" under the Act,
and hence an "expenditure" by the recipient candidate or his
committee. The definition of "contribution" relied on is
2 USC $431 (e) (4), which provides that "contribution":
"means the payment, by any person other
than a candidate or a political committee,
of compensation for the personal services
of another person which are rendered to
FORD
such candidate or political committee
without charge for any such purpose."
LIBRARY
*
- 6 -
The brief amicus points out that "person" is broadly defined
to include "any other organization" (2 USC $431(h)), and argues
at some length that the government is a "person" within this
definition.
One obstacle to this argument is that "In common usage
that term [person] does not include the sovereign, and statutes
employing it will ordinarily not be construed to do so."
U.S. V. United Mine Workers, 330 U.S. 258, 687. A still more
formidable barrier is the absurdity of the result, for if the
United States is a "person", and its payments of salary for
time spent politicking are "contributions", it is subject to
the $1,000. ceiling on contributions of $441a (a) (1), and is
subject to the Act's criminal provisions. See $441j.
A more plausible line of argument is that, although these
salary payments are not a contribution within $431 (e) (4), they
are a contribution under the general language of $431 (e) (1) as
"a gift
... of money or anything of value made for the purpose
of ---- (A) influencing" nomination or election to federal office.
If this language were viewed as applicable it would be possible
to disregard the role of the United States as contributor, but
to require recipient candidates or committees to report the
salary payments as contributions in-kind to them and as
expenditures by them -- a result less absurd than would follow
from holding the United States to be a "person".
FORD
- 7 -
However this construction, too, runs afoul of the literal
language of the statute, for the "gift" is "made" by the United
States, and the United States has no purpose to influence an
election: only the incumbent officeholder and the employee
have that purpose.
This contribution would also involve the Commission in
great practical difficulties of administration. The definition
of "contribution" excludes "the value of services provided
without compensation by individuals who volunteer a portion or
all of their time on behalf of a candidate or political com-
mittee". $431 (e) (5). Thus if complaints were filed the Com-
mission would have to determine in each instance:
(a) Whether the services were in fact volunteered,
or were required by the incumbent officeholder;
(b) Whether a normal day's work was done by the
employee, so that the services could be said
to be "without compensation".
(c) Whether particular activities were intended
to influence the election, or to report to
constituents on public issues or to assist them
with particular problems.
This last distinction would be impossible of administration,
except upon a presumption based on proximity to the election.
And, as the Court of Appeals noted in Buckley V. Valeo:
"It is certainly appropriate for Congress
to assure that steps taken to diminish
incumbency advantage do not have the
result of eroding representation or the
effectiveness of a legislator in communi-
cating with his constituents."
4
- 8 -
The Court also noted:
"Any advantage gained by incumbents from
service to their constituents is neither
novel nor pernicious. Indeed, this may
be a vindication of the principles of
democracy. "
These three types of determinations would have to be made
in the first instance by reporting candidates and committees,
but would be reviewable by the Commission if complaints were
filed, as many surely would be by competing candidates.
If the services were (a) not volunteered, or (b) even if
they were to the extent that they were in lieu of, and not in
addition to, normal non-political work, or (c) if the services
were for the purpose of influencing the election, as distinguished
from constituent reporting or service, then the value of the
services (presumably the salary paid) would be reportable as
contributions and expenditures.
The Commission as presently staffed and budgeted could
not conceivably handle the problems to which such a construction
of the Act would give rise. P Assuming that the United States
is not subject to the ceilings on contributions, the consequence,
of holding that government employee political activity is a
contribution and an expenditure would, in the case of
congressional elections, be simply to trigger a reporting
obligation. In the case of a presidential general election,
however, such a holding would be an absolute barrier to
employee political activity on behalf of an incumbent President
accepting public financing.
- 9 -
*
Public Citizen argues that that is just what Congress
must have intended.
Public Citizen points out that much of the impetus for
the 1974 amendments to the Act came from the abuses of the
Nixon administration during the 1972 election, and that "among
the most prominent of these abuses was the extraordinary use
of the federal government for campaign purposes, including
the extensive use of Cabinet officials and White House advisors
in campaign activities." The sequitur asserted is that the
1974 amendments must have been meant to bar these abuses.
However there is nothing in the language or the legis-
lative history of the 1971 Act (enacted in 1972), the 1974
amendments, or the 1976 amendments, that even hints that
Congress meant to deal with federal employee political activity
via the Election Campaign Act. It is inconceivable to me that
Congress intended, without mentioning it, to confer on this
Commission responsibility for monitoring political activity
by government employees, including congressional staffs. If,
as Public Citizen says, the 1972 misuse of White House staff
was prominently before Congress in 1974, its total omission to
deal explicitly with that problem via the Election Campaign
Act must indicate a decision to leave its handling to other
statutes, rules and orders, and to agencies other than this
Commission. None of the studies made by the Congressional
Research Service early this year suggests that the Elections
FORD
Act has application to the problem.
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A
I accordingly conclude that the complaints filed with
this Commission do not allege any violation of law within
the jurisdiction of this Commission. It goes without saying
that I do not, in reaching this conclusion, negate or minimize
the possibilities of abuse which exist as respects political
activities by federal employees on behalf of incumbent federal
officeholders, nor do I minimize the advantage this may give
incumbents over challengers. I simply conclude that this
Commission has not been empowered to do anything about it.
YORK
DENALE
MUR - 077
STATEMENT OF COMMISSIONER STAEBLER
CONCURRING IN RESULT
While I concur in the action of the Commission in closing
the file in MUR-077, I do so solely on the basis of the Commission's
inherent discretion not to pursue matters which will not further the
purposes of the Act. I cannot, however, concur in the conclusion of
my fellow Commissioners that the Commission has found "no reason to
believe" that a violation of the Act has occurred.
I. PURSUIT AT THIS TIME OF MUR-077 WILL NOT FURTHER THE PURPOSES OF THE
ACT
Resolution of this particular, well-publicized case, caught
in the aftermath of the Buckley decision, frought with procedural
complexities, and largely mooted by subsequent events, has been de-
layed far too long. Nothing submitted to the Commission indicates
any intentional violation by Mr. Morton, the President Ford Committee,
or the White House. Any possible continuing questions as to the
propriety of Mr. Morton's status were closed by his resignation within
a matter of weeks after the events which prompted the complaints. As
will be discussed in more detail below, the reach of the law in this
delicate area is less than completely clear. There is every indication
that if any technical violation occurred it would have been found to be
both inadvertent and minimal in effect. Under such circumstances to
commit scarce Commission resources to a full-blown investigation of
this particular case cannot, in my opinion, be justified.
GERALU
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2
I believe, however, that the issues presented by the complaints
are issues of great public significance and merit further discussion.
I do so here in order that the Commission's decision not be misunder-
stood and that Congress and the public be made aware of questions which
yet remain with respect to the Commission's mandate.
II. POLITICAL USE OF GOVERNMENT EMPLOYEES REMAINS A MAJOR AMBIGUITY
IN THE LAW
This case highlights a major ambiguity in the political process
which remains despite all recent reform legislation: the extent to
which government employees and other government resources may be used
for political purposes. In many higher level positions of government,
there is an inevitable, perhaps inseparable involvement with politics;
the gradation between general political matters and campaign-related
acitivitycan be almost imperceptible.
Access to government employees and resources constitutes an un-
deniable and material advantage to candidates with power to make
political use of them. This is particulary true with respect to an
incumbent President, campaigning for re-election, possessed of great
resources, and subject to a tight limit on his campaign spending.
The literal language of the definition of a contribution and an ex-
penditure under the Act includes "anything of value used to influence
the nomination of a candidate for Federal office". The points raised
by Commissioner Harris as to whether government assets may be contribu-
tions or expenditures at all is not answered by resort to the legislative
GERALD FORD
3
history of the FECA. However, the use of government employees for
political use is considered an abuse in the mind of the public.
Such abuse creates a loophole of major proportions in the contribu-
tion and expenditure limits established by the Federal Election Cam-
paign Act. It is most unfortunate that the guidance given by the law
in this area is so unclear.
III. UNDER DIFFERENCE CIRCUMSTANCES THERE MIGHT BE SUFFICIENT EVIDENCE TO
WARRANT INVESTIGATION
To close the file for lack of sufficient evidence, as the General
Counsel's report recommends, may convey the impression that all similar
complaints will be similarly dismissed. While a consistent standard
of evidence for all such complaints is certainly necessary, I believe
that the Commission must hold itself in readiness to proceed to obtain
independent evidence, based on a standard of evidence no higher than
present in these complaints, when circumstances are more appropriate
than here.
I do not believe, as the Commission's letter implies and the General
Counsel's report states, that Congress intended the Commission to be so
procedure-bound that only a documented, prima facie case can justify
an investigation. Campaign violations have usually taken place in
secret, and have often been unravelled only by the thinnest threads
of evidence. I note parenthetically that Watergate could never have
been investigated based on such a lofty standard; and I do not believe
GERA
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4
that a prima facie case can be required as a prerequisite to Com-
mission investigation. Rather, I believe that "lack of evidence"
here serves merely as a euphemism for the combination of factors
described in Section I, above, and not as a statement of the standard
of evidence that the Commission will require. To base closing the file
in MUR-077 on lack of evidence, as is suggested, is unwarranted as
a matter of both law and policy.
IV. THE COMMISSION HAS AT LEAST ARGUABLE JURISDICTION OVER THE MATTERS
COMPLAINED OF
A second argument to support closing the file is advanced by
Commissioner Harris in his separate statement. Regardless of the
capacity of the government to be a contributor within the meaning
of the Act, the value of government resources used by the President
for political purposes should be treated as a campaign expenditure
subject to the Act and is, I believe, conceded to be so by the White House.
Since the value of government services so provided cannot be a
contribution in kind from the government to the candidate, the only
appropriate remedy consistent with the purposes of the Act is reim-
bursement to the government by the campaign. Indeed, unless reimburse-
ment is required, the law stands without any effective means of redress.
I would not understand Commissioner Harris to assert any less. Rather,
he would conclude only that such a determination must be made by the
Civil Service Commission or the General Accounting Office, rather than
the Commission.
GERALD
LIBRARY
5
As is pointed out above, the literal language of the contribu-
tion and expenditure definitions of the Act include all things of
value (including personal services) which influence the nomination
of a person to Federal office. The effectiveness of limits on cam-
paign spending in Presidential elections depends on effective
limits on all monies used in connection with the campaign. Deter-
mination long after the fact by some other agency that reimbursement
is required on the basis of a different statutory mandate will not
preserve the integrity of those limits.
I believe that the Commission does have jurisdiction over the
matters here in question and I will be prepared to vote to assert
jursidiction in appropriate cases raising similar issues.
V. CONCLUSION
The Commission has taken the correct action in closing the file
in MUR-077. I believe that the purposes of the Act are not served by
keeping the matter open, and I believe all my fellow Commissioners
share that view. It is therefore unfortunate to explain the closing in
a way which may be misleading. Accordingly, I concur in the result
in MUR-077 but dissent from the explanation given in the letter of
transmittal and the General Counsel's report.
Neil Staebler, Commissioner
GERALD R. FORD LIBRART
BEFORE THE FEDERAL ELECTION COMMISSION
In the Matter of
)
)
MUR 077 (76)
President Ford Committee
)
(Morton)
)
GENERAL COUNSEL'S REPORT
I. Allegations
During January 1976, the Federal Election Commission
received three separate notarized complaints and a number
of letters directed against the activities of Roger C. B.
Morton in his then position as Counselor to the President.
In substance, it was alleged that Mr. Morton was participating
in campaign activities on behalf of the President, and that
such activities constituted contributions within the meaning
of the Federal Election Campaign Act of 1971, as amended
(the Act). Accordingly, it was alleged that the payment of
Mr. Morton's salary out of public funds actually constituted
a reportable expenditure by the President Ford Committee
under Title 2 of U.S.C.A., and in addition, counted against
the President's spending limits set forth in 18 U.S.C. Section
608 (c), now U.S.C. Section 441a (b)
II. Evidence
Other than the allegations outlined, supra, and the
presentation of various news clippings providing a general
FORD
description of Mr. Morton's role, none of the complainants
GERALD
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delineated specific examples of Mr. Morton's use of his
office on behalf of the President. On April 2, 1976, having
resigned his position as counsellor, Mr. Morton was appointed
National Campaign Director for the President's campaign.
III. Analysis and Recommendation
None of the complainants in this matter have furnished
the Commission with evidence that the political activities of
Mr. Morton have occurred during his working time as counsellor
to the President. Submissions on behalf of the President
support a contrary view. Absent such evidence, we find no
basis for the Commission to proceed with further investigation
of this matter.
2 U.S.C. $431 (e) (5) (A) states that there is no contri-
bution in a situation involving "the value of services provided
without compensation by individuals who volunteer a portion
of their time on behalf of a candidate." The Commission has
repeatedly construed this as meaning that campaign-related
services provided outside the course of a normal work day are
not contributions. See Proposed Regulation on Disclosure
$100.4 (b) (2) ; AO 1975-94 (41 FR 4742) ; OC 1975-30 (March 22,
1976) There is no basis for believing that such is not the
case here.
- 3 -
Relevant in this connection is the applicable language
of the Hatch Act. As an employee who is "paid from the
appropriation for the Office of the President," Mr. Morton
is exempted by 2 U.S.C. $7324(d) from the blanket proscription
of 2 U.S.C. $7324 (a) on political activity by an employee of an
executive agency. A reasonable construction of this exemption
is that it permits an exempt employee -- e.g., Mr. Morton --
to engage in campaign-related activities in non-business
hours. / Although Mr. Morton would arguably have violated the
Hatch Act had he aided the President's campaign during the
business work day, there is no proof that he did SO. It
should also be noted that there is no standard definition
of ordinary business work day for a person at Mr. Morton's
level.
/ This construction appears to follow from the language of
United Public Workers V. Mitchell, 330 U.S. 75 (1947).
Discussing the absolute ban on political activity by
executive employees the Court noted:
"We do not find persuasion in appellant's argu-
ment that such activities during free time are
not subject to regulation even though admittedly
political activities cannot be indulged in during
work hours. " (Id. at 330 U.S. 95) (Emphasis added.)
See also, Mtr. of Charles P. Demsey, LSC, F-1215-47, 1
Par. 325, holding that even though an individual Government
employee was not subject to political activity restrictions
because of his temporary situation, he still could not en-
gage in political activity on the job.
FORD
GERALD
LISEARY
- 4 -
We are mindful that the underlying issue herein--when
and to what extent staff members to a candidate who are paid
from public funds may perform campaign related tasks--presents
serious problems. However, the present case, for the reasons
outlined, supra, is not an appropriate vehicle for resolution
of the issue posed.
IV. Conclusion
Close file.
John G. Murphy Jr
General Counsel
DATE: July 19,1976
GERALD R. FORD LIBRART
THE WHITE HOUSE
WASHINGTON
July 27, 1976
MEMORANDUM FOR:
DICK CHENEY
FROM:
PHIL BUCHEN
SUBJECT:
Morton Complaint
Last January, the FEC received three formal complaints (including
complaints filed by the DNC and Fred Harris) alleging that the
appointment of Rogers Morton to the White House staff violated
the Federal election laws because his service represented an in-
kind contribution to the PFC which the PFC had not reported.
Yesterday the Commission by a 6-0 vote closed its file in this
matter. Five members of the Commission (Neil Staebler dissenting)
concluded "that there is no reason to believe that any violation of
the Federal Election Campaign Act of 1971, as amended, has been
committed. "
The FEC General Counsel, in a report that has been released to
the press, took the position that the Hatch Act appears to prohibit
White House employees from engaging in campaign-related
activities during the business work day. However, the General
Counsel noted that "there is no standard definition of an ordinary
business work day for a person at Mr. Morton's level. " He then
concluded that none of the complaints had furnished evidence
that the political activities of Rog Morton had occurred during
his working time as counsellor to the President and absent such
evidence, there was no basis for the Commission to investigate
this matter further. The general question of the performance of
campaign-related tasks by government employees was specifically
left open.
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Vice Chairman Harris released a separate statement in which he
concluded that the Federal Election Campaign Act, as amended,
was never intended to deal with political activities by federal
employees. Accordingly, he found that the complaints in this
matter did not allege any violation of law within the jurisdiction
of the FEC. Harris suggests that GAO or the CSC may have
jurisdiction in such matters. Commissioner Staebler also issued
a statement in which he concluded that the Morton complaint was
now moot and the case should be closed. However, he stated his
view that the value of government resources used by the President
for political purposes should be treated as campaign expenditures
subject to the Act, and that he is prepared to vote to assert
jurisdiction over such matters in the future.
Should Ron Nessen receive any press inquiries on this matter,
I recommend he indicate that the Commission's decision is clear
on its face, that we are pleased by the decision, and the White
House views on this matter have already been extensively
commented on by Ron in the past.
CC: Ron Nessen
FORD
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que.
FEDERAL ELECTION COMMISSING
FEDERAL ELECTION COMMISSION
1325 K STREET N.W.
UNITED TATES OF AMERICA
WASHINGTON,D.C. 20463
1 0 SEP 1976
I/C #497
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D.C.
20500
Dear Mr. Buchen:
This refers further to your request for an
opinion concerning whether any portion of the
salaries of assistants to public officials should
be expenditures for purposes of the Federal
Election Campaign Act of 1971, as amended.
I believe you are aware that the issues
raised by your request have been resolved by the
Commission in the context of a compliance matter.
Accordingly, in view of those developments which
have occured since my letter to you of March 16,
1976, it would appear that no further response to
your inquiry is required.
Thank you for your patience and understanding.
Sincerely yours,
Murphy,
TION
AMERICANA REVOLL WEENTENNAY
1776
1976