tion with the legislative process, they are not a very effective response to the changing nature aof the Federal Government. Despite the large number of statutes which contain a legislative veto provision, the mechanism itself has not been frequently used. Since 1932, legislative vetoes overturning Presidential or regulatory actions have been adopted approximately 125 times. Sixty-six of these vetoes have been requests for deferrals of spending authority under the Congressional Budget and Impoundment Control Act of 1974; 24 were disapprovals of Executive reorganization plans; and only 25 involved agency regulations. The remainder addressed policy or other matters not regulatory in nature.9 Before addressing whether we should seek alternatives to legislative veto, I must first state that I have long opposed the adoption and use of this device. My opposition is based on several factors and would apply to most other "quick-fix" mechanisms that would somehow seek to short circuit the regular constitutional legislative process. First, such alternatives encourage Congress to avoid setting clear national policy when it delegates statutory authority in the first place. The tough political choices are simply avoided and pushed to the end of what is often a long and complex decisionmaking process. I believe Congress should make these choices, and make them clearly, at the time the statutory authority is originally delegated. Second, the proliferation of alternatives to legislative veto will necessarily result in an increase in congressional staff. If the Congress seeks to perform the functions of the Executive, it will find it necessary to duplicate the staff of the Executive. Rather than creating greater political accountability, one of the stated goals of legislative veto, such duplication actually reduces political accountability. With both the executive branch and Congress involved in a particular decision, neither branch will be truly responsible for that decision. Moreover, a congressional bureaucracy will not necessarily be more expert or enlightened than the executive bureaucracy that already exists. Third, the original purposes of most delegations of statutory authority, particularly in the area of regulations, were to assure that a decision would be made only after expert evaluation of the facts, and to assure that due process would be afforded to affected groups and individuals. Legislative veto and its alternatives threaten the integrity of this process by opening it to special interest pleading and political pressure. They invite closed-door dealings with Members of Congress or their staffs, with decisions being made on the basis of power, not facts. Fourth, legislative veto and its alternatives necessarily plunge an already overburdened Congress into a morass of Executive and administrative decisions, ranging from such matters as the amount of pulp required for lemon juice to the safety procedures for nuclear powerplants. While each of these issues is important in its own. context, one of the main reasons for delegations of authority in the first place was that Congress lacked the time to deal with the complex and necessarily detailed matters involved in implementing the "Data on and examples of Congressional Disapproval of Rules and Regulations," Clark F. Norton, Congressional Research Service, Library of Congress, July 8, 1983. law. Congressional involvement in all such decisions will deny Congress the time it needs to concentrate on the broad domestic and foreign policy issues which only it can address. Fifth, legislative veto type devices add another time-consuming step to the decisionmaking process. Such delay can itself impose significant burdens. For example, the failure to promptly issue regulations can prevent businesses from making vital decisions on such matters as redesignating products or making capital investments to modernize facilities. Delay can also make it difficult for State and local governments to administer federally mandated programs effectively. Finally, legislative veto type devices make it difficult to implement laws advancing the common good. While the beneficiaries of a law are generally dispersed through the population, those who must directly comply with the law are often a clearly identifiable group with a specific interest in how a law is implemented. Such groups frequently have a strong incentive to prevent aggressive implementation. For example, under a statute which mandates a decrease in air pollution, an agency might issue regulations that require costly capital investment to install smokestack scrubbers. Manufacturers would like to avoid these expenditures. They might bring pressure on Congress to veto the regulation-raising every objection from increased unemployment to balance-of-payment problems. Each of these is a legitimate concern for Congress to consider in setting national environmental policy. However, if Congress responds serially to each such concern, the law that was enacted for the common good can be gutted by congressional rejection of any specific implementation. Legislative veto was aimed at the end point of the decisionmaking process. It short circuited the regular legislative process. It did not require a careful balancing of facts, interest, and equities-it simply said "no" to whatever the Executive had decided. It did not require any clear assessment of the situation or any choice of contending policies, but it did give Congress the appearance of decisiveness and control. In view of my position on legislative veto, it come as no surprise that I generally oppose adopting new devices or mechanisms to replace the original forms of legislative veto. However, I do believe that Congress must address with the situation resulting from the Chadha decision. Congress must first concern itself with statutory delegations that are subject to unconstitutional legislative veto provisions. The major problem involved here is that of severability. Each statutory provision subject to legislative veto must be examined to determine whether the Congress wishes to continue the delegation without the limitation of a legislative veto. This process should be undertaken as expeditiously as possible, because there now is doubt as to the validity of the legal obligations imposed by these statutes. Congress must determine whether to continue these delegations, perhaps with specific limitations and guidelines, or whether to entirely rescind the authority. Only when this immediate and rather urgent task is accomplished should Congress consider alternatives to legislative veto. It is my view that before searching alternatives, Congress should carefully examine the modern relationship between the executive and legislative branches in the light of separation of powers and effective Government process. I believe this examination will demonstrate that it is unnecessary to adopt new mechanisms of congressional control. The political clout and legislative authority of Congress have not been measurably diminished by the loss of a mechanism that, perhaps with the exception of the areas of overlapping constitutional responsibilities, was very poor policy in the first place. Congress already has effective, constitutional means to insure that the laws are fully implemented. What is needed is for Congress to exercise more effectively the power it currently possesses. First, Congress should be more careful with the laws it enacts. In new statutes, Congress can legislate with greater specificity and clearer standards, making in the beginning the hard political choices that it has often avoided through broad delegations with vague standards. Congress can also reexamine existing statutes from a more exacting perspective. If the purposes of these statutes are not being met, or if delegated authority is being improperly used, Congress can legislate to clarify, limit, or, if necessary, withdraw the delegation. Second, Congress can delegate authority to the executive branch for limited periods of time. This will require the executive branch to justify the renewal of statutes or programs otherwise scheduled for termination. It will also give Congress an opportunity to require a change in executive implementation of the delegated authority, if experience shows that change is necessary. Third, Congress can direct that certain Executive decisions may not go into effect until it has had a set time to review the decision. This would allow Congress to pass legislation to override Executive decisions before they take effect. These "report and wait" provisions have been used effectively in the past, and in the Rules Enabling Act to which I referred earlier. However, in my view, this approach should be limited to major decisions that need not go into effect immediately and that occur only occasionally, such as executive branch reorganizations. Fourth, Congress has final say over the Government's pocketbook. Congress can use the appropriations process to direct or prohibit the expenditure of funds for a particular purpose. This is a powerful tool because the President and agencies are unlikely to risk consistently incurring wrath by the controller of the pocketbook. Experience has shown that accommodations with the executive branch are often possible before direct action through the appropriations process is necessary. Fifth, the Senate must confirm the appointment of high-level Presidential appointees (article II, section 2, clause 2.). Under the Constitution, this is a final, unreviewable power. In a confrontation with the President over the execution of the law, the Senate can disapprove an appointment until a certain condition is satisfied or it can withhold its approval until it extracts a commitment that the law will be executed in a specified manner. Sixth, Congress can impeach executive branch officials. The House of Representatives and the Senate together hold the power to remove from office executive branch officers who fail to carry out the duties of office in a proper manner. This is a drastic remedy, but it can be used if necessary. Finally, Congress must face the defects in its own organization, where numerous committees and subcommittees have overlapping jurisdiction that makes effective legislative oversight weak, fragmented, and, at times, contradictory. Reform of the committee system could lead to enhanced congressional power and more efficient government. Ultimately, if the Executive is acting in an unauthorized or excessive manner, Congress can restrain and redirect it. The question is not one of power, but one of will. Congress has the power to shape national government and policy; the question is whether it has the will to do so. The CHAIRMAN. Our hearings in the Rules Committee on this subject will resume on February 29, when we will examine the effects of the Chadha case on the appropriations and authorizations process in the Congress. I hope note will be taken of that. Is there anything you would like to add, Mr. Frost? Mr. FROST. I would be interested if the staff could give us an analysis reasonably soon as to how many of the statutes do not have severability clauses so that we know what the situation is. The CHAIRMAN. I will ask the staff to try to get that information. Thank you, Mr. Frost. Mr. Wheat, do you have any questions or comments? Mr. WHEAT. No, Mr. Chairman. The CHAIRMAN. If not, that concludes the hearing for today. [Whereupon, the committee was recessed at 3:40 p.m., to reconvene on Wednesday, February 29, 1984.] LEGISLATIVE VETO AFTER CHADHA WEDNESDAY, FEBRUARY 29, 1984 HOUSE OF REPRESENTATIVES, The committee met, pursuant to notice, at 2 p.m., in room H-313, the Capitol, Hon. Claude Pepper (chairman) presiding. Present: Representatives Pepper, Moakley, Derrick, and Wheat. The CHAIRMAN. The committee will come to order, please. We are continuing our hearings on what the Congress should do in response to the decision of the Supreme Court in the Chadha case. We have today some outstanding citizens who I am surewill give us some very valuable suggestions. We are honored to have the Honorable Silvio Conte and the Honorable James T. Broyhill. Mr. Broyhill, would you please proceed? We appreciate your coming. STATEMENT OF HON. JAMES T. BROYHILL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA Mr. BROYHILL. I do have a formal statement which I would ask be made a part of the record. The CHAIRMAN. Without objection, it will be received. Mr. BROYHILL. I would like to take a few moments to summarize my remarks on this important subject. I certainly do appreciate the opportunity to come here and testify. It is my understanding that you are taking an overall look at what the response of Congress should be to the Supreme Court's ruling in Chadha. The need for extensive regulatory reform legislation is something that we should all recognize. The size of the Federal bureaucracy has grown and grown over recent years, and it is continuing to do so. Of course, that means so does the number and the complexity of Federal regulations that the bureaucracy is putting out. The cost of such regulations are enormous. The cost to the consuming public is $100 billion or more a year. With these kinds of estimates of economic impact, it is apparent that duplicative or unnecessary regulations exist, which continue to inhibit economic growth. It seems to me that we should have a system of rational regulation. That is, regulations that are more efficient and less costly. Congressman Levitas and I have argued in the past that we have delegated this rulemaking authority to the bureaucracy and should therefore retain the ability to review their work product. It is actu |