Senator BAYH. We certainly appreciate your thoughts. I would like to ask a question of you as an astute attorney. As you realize, we have tried to keep these constitutional amendments as short as we can. I would like to ask you a question on the need for the inclusion of the wording in your bill which says that he shall be a member of the same political party as the President. From the practical standpoint, I think that is what we want to accomplish. I think any President would nominate such a Vice President.

Senator MILLER. I certainly do, Mr. Chairman, because I think it would be most unfortunate if a President of one party genuinely wished to nominate a member of his own party, as I would be confident that most of them would do except under most unusual circumstances, and found that perhaps the Congress would object to the fact that there ought to be a President of the other party. We do not know what developments may exist. But if we have clearly nailed down in the Constitution that there is no choice in the matter, there cannot be any controversy in a joint session of Congress over whether or not this nominee shall be a member of the President's party or some other party, then there is no room for argument about it and you get on with-you may have a difficulty over the nominee himself, but the problem of which party he belongs to will be completely eliminated. We have seen some tough times, when you have a member of one party in the Presidency and a member of the other party patrols one or both Houses of the Congress. This could particularly happen in an off year, when the party that controls the Presidency has lost the battle in the Congress. So I suggest we eliminate that problem once and for all by spelling it out clearly in the law.

Senator BAYH. I am not too certain, in all fairness, as one of the strongest supporters of Senate Joint Resolution 1, that we do eliminate it entirely.

Senator MILLER. Here, again, Mr. Chairman, this cannot do any harm. It cannot do any harm at all.

Senator BAYH. Granted. The one possibility that I can envision that could happen, in Senate Joint Resolution 1 or in Senate Joint Resolution 15, is that with one party controlling the Congress, another party having the Presidency, there is always a likelihood, even if we say, "who shall be of the same political party as the President," that they just do not get around to nominating a Vice President.

I think we are relying on a situation in which we have reasonable men, and an expression of public opinion. I think the Senator is relying on it in his amendment. We have to have public opinion that in a time of crisis is just not going to tolerate any political chicanerygood faith in the Members of Congress is what I am talking about.

Senator MILLER. May I say I agree with you that public opinion, after a certain amount of time, would not tolerate it. But I think we could make the same argument about public opinion with respect to a disability problem. Let us just not leave it to controversy or to chance. A mere phrase could avoid a knockdown between Members of the two Houses. I do not consider it quite excess when we are touching on something as deeply serious as this. If it is a foregone conclusion when the Members of the two Houses go over there for a joint session to act on a nomination, it is a foregone conclusion because it is a matter of constitutional law that that nominee simply

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has to be a member of the same party as the one which controls the Presidency, at least that is one less thing to argue about.

Senator BAYH. Thank you.

Senator Hruska, do you have any comments on that?

Senator HRUSKA. No. I have not. The position of the Senator from Iowa has been very well stated and has a lot to be said for it. There are some countervailing points which I am sure will be discussed by the subcommittee.

But we are grateful for your opinions, Senator Miller. Thank you for coming.

Senator MILLER. Thank you, sir.

Senator BAYH. We shall proceed now with further witnesses of the committee, because a couple of them have planes to catch.

Senator BAYH. A staff member, Mr. Sharp, of one of the distinguished members of the subcommittee, Senator Dodd, would like to read Senator Dodd's statement. I shall ask his indulgence, since some of these witnesses have planes to catch, to allow them to proceed here and he can read the statement in later.

The next witness will be Marion Folsom.

Without objection, I shall ask Mr. Folsom to be the next witness. He is the former Secretary of Health, Education, and Welfare. At present, he is chairman of the Committee for Improvement of Management in Government, Committee for Economic Development. He has made a considerable contribution in this area.

I want to thank Mr. Folsom for his part in the committee's deliberation and compliment the committee for throwing the great influence that it has throughout the country behind the need to find a solution for this problem.

Mr. Folsom, we are appreciative of your being with us today.

STATEMENT OF HON. MARION B. FOLSOM, CHAIRMAN, COMMITTEE FOR IMPROVEMENT OF MANAGEMENT IN GOVERNMENT, COMMITTEE FOR ECONOMIC DEVELOPMENT

Mr. FOLSOM. Mr. Chairman and members of the Senate Judiciary Subcommittee on Constitutional Amendments, your invitation to testify on the vital subject of a constitutional amendment designed to solve the problem of presidential succession and inability is much appreciated, both by me personally and-I am certain-by my fellow trustees of the Committee for Economic Development, and by all members of the CED's Committee for Improvement of Management in Government.

This is the first occasion, so far as I recall, on which any representative of CED has appeared before this subcommittee of the Senate. Perhaps it is appropriate at this time to outline briefly CED's interests, activities, and composition.

The Committee for Economic Development was established in 1942. It has been actively engaged over the intervening years in the development of national policy positions best suited to encourage the economic well-being of the United States and of the free world. Policy statements on such matters as taxation, Federal expenditures, foreign trade, and monetary management have been issued frequently and distributed widely. Many of these have received a favorable reception, on their

merits, in the business community, in university faculties, and in other influential circles, leading eventually to broad public acceptance of their basic principles.

The Committee for Economic Development consists of 200 trustees representing a broad spectrum of business and university leadership in the United States. Its several subcommittees are supported in their work by advisory groups of the best scholarly minds in the Nation. About 2 years ago, several top officials of the Kennedy administration and former officials of the Federal Government approached me and others active in CED, proposing that we apply the same approaches to improvement of our governmental institutions that have been used in formulating national economic policies in the public interest. With financial support from Carnegie Corp. and several other foundations, CED has established the Committee for Improvement of Management in Government. The 25 CED trustees with most experience in Government were appointed to it, and 10 additional members were added from outside CED to provide the broadest possible balance for our work.

Four of our thirty-five members had served as heads of Cabinet Departments, five had been Assistant or Under Secretaries, thirteen chairmen or members of Federal regulatory or advisory commissions, and thirteen were former bureau chiefs or directors, or special assistants to the President or to Cabinet members.

You might say one was a former Senator, Senator Benton.

Our committee's work has benefited greatly from the counsel of our advisory board, men with wide experience in governmental affairs, as well as in university and business circles. These 15 advisers are listed. on page 6 of the document I think you have before you.

The Committee for Improvement of Management in Government regards the subject of Presidential succession and inability as one commanding highest priority. We recognize and commend the constructive work done by you, Mr. Chairman, and your colleagues of the Senate Judiciary Subcommittee on Constitutional Amendments, in drafting and gaining Senate approval for a constitutional amendment which-if finally adopted-would do much to correct serious deficiencies in our present constitutional system. The thought and effort devoted to these problems are a great service to the Nation.

The second policy statement issued by our committee deals with these matters in some depth, and I am pleased to submit copies of that statement for your examination. Our committee has deliberated at length on every facet of this complex series of issues, in consultation with our advisers.

We have also had the benefit of Mr. Brownell's Committee of the American Bar Association. They met with us and his staff met with us extensively in our discussions.

Both the Committee for Improvement of Management in Government and the CED Research and Policy Committee have approved the policy positions set forth in this document. Of some 60 members of these 2 committees, only 2 have expressed reservations and 1 has dissented, in footnotes contained in the document. The members of the two committees are listed on pages 5 and 6 of the policy state

ment.

I emphasize the strength of our concensus because there are some distinct differences between positions taken by CED and the provisions

of the proposed constitutional amendment as it was approved by the Senate in its last session.

We do agree, wholeheartedly, that any vacancy in the Office of Vice President should be promptly filled, through nomination by the President and with congressional confirmation.

We also concur, of course, on authority for the Vice President to act as President in situations where both President and Vice President are in agreement on the need.

We regard clarification of other situations, involving presidential inability, as an immediate imperative-as Members of the Senate do, also-but we believe that certain modifications of the proposal, as approved by the Senate last year, would prevent possible ambiguity and confusion in future situations that might conceivably arise. It may be well to identify, in quite specific terms, the points at which we depart in any substantial way from the previous thinking of this committee.

First, we believe that congressional confirmation of a Presidential nomination to fill a vacancy in the Vice-Presidency should be through a joint session of the two Houses, requiring approval by a majority of all Senators and Representatives present and voting.

I understand that was along the line that the Senator from Iowa was just suggesting in his amendment-a joint session.

We favor this method, as opposed either to confirmation by the Senate alone, or to approval by the two Houses acting separately, for three primary reasons: (1) The joint session corresponds to voting strength, State by State, in the electoral college; (2) action-pro or con-would be more expeditious than could be expected through separate consideration by the two Houses or under normal Senate procedures; and (3) the Senate and the House of Representatives might be in disagreement, with unfortunate effects. We acknowledge that formal action in joint session would require establishment of rules of procedure for that body but this would seem to be a relatively simple problem.

Second, we believe that the initiative in determination of an undeclared presidential inability should lie with the Cabinet and not with the Vice President. In other words, we feel that such determination should be by the Cabinet, the Vice President concurring, as was provided in the amendment as passed by the Senate last year. Our reason

ing rests upon repeated experience; for example, during the Garfield and Wilson illnesses, showing that the Vice President is likely to be most reluctant to proclaim the Nation's need for him to assume the presidential powers and duties, no matter how urgent or obvious the necessity, so long as the President lives.

The Vice President should never be forced to accept authority under conditions permitting unfair charges of usurpation against him, nor should his natural feelings of deference and loyalty to a disabled Chief Executive be allowed to absolve him from his proper responsibility. The Committee for Improvement of Management in Government has taken a strong position on this point, perhaps because four of us were members of the Cabinet during one or more of President Eisenhower's several periods of illness.

If Members of the Congress were to visualize clearly the realities in cases of this kind, we believe they would conclude, as we have, that initiative should rest with the Cabinet, and not with the Vice President. Further, we oppose creation of any alternative group as a substitute

for the Cabinet in determination of presidential inability, on grounds fully explored in our policy statement. The Cabinet is best situated, through the intimate knowledge its members have of major issues of state and by reason of their day-to-day association with the President, both to judge presidential inability and to assess the urgencies in the national situation at any moment.

Third, we are much concerned that the Nation avoid any possibility of doubt, dispute, or delay concerning termination of any conceivable presidential inability. That is why we urge that this matter also be decided by the Cabinet, subject only to presidential concurrence. The amendment proposed last year opens in our view-opportunity for confusion and dispute over who may hold legitimate authority to exercise the powers and duties of the Presidency in some future time of trial and trouble.

The principle of separation of powers among the three branches of government appears to us to be eminently sound. We cannot agree that it is wise to place a conceivable future difference of opinion between President and Vice President over the termination of a presidential inability before the Congress for decision, especially if the result is to depend upon two-third majorities in both Houses.

This subject deserves renewed attention and closest scrutiny. Under the language previously proposed, it would be possible for a President to terminate his own disability, against the judgment of the Vice President supported by the entire Cabinet and a unanimous vote of the Senate, if only one-third of the House of Representatives were to agree with the President. We may hope that no such disagreement would ever occur but some better arrangement than this should be made for the possibility, however remote it may now seem to be. We strongly reaffirm the merits of Cabinet decision on this delicate matter, subject only to presidential concurrence.

Finally, although corrective action would not require a constitutional amendment, our committee strongly prefers the terms of the 1886 statute on presidential succession, as opposed to those of the 1947 statute. If early provision is made for filling vice-presidential vacancies, the need for revision of the present arrangement would be lessened but it would still exist. The reasons for this position are noted in our policy statement and they bear great weight. One fact alone should be decisive here: For 8 of the past 18 years, the Speaker of the House has been of the political party in opposition to that of the President. Surely, we do not wish to permit a change in the partisan complexion of the executive branch through some accident of death or disability.

In summary, I would emphasize the criteria used by our committee in arriving at its choices among the various possible alternatives. They were: (1) Continuity in the exercise of Presidential powers and duties; (2) legitimacy and public acceptability; (3) certainty, leaving no doubt who-and who alone-may exercise these powers: (4) stability in policy; (5) speed and simplicity in procedures used to determine the issues; and (6) preservation of the separation of powers.

Above all, we hope and trust that the best and wisest remedy may be found for each defect in our present system. The Constitution is not easily amended, nor should it be. The process requires the kind of careful deliberation being given in this case.