fice, of believing there is a double standard will come into play, and I do not want to see that happen and move toward what Senator Smith would like, which I think would be a very, very bad thing, which is to have the executive branch having power to enforce these laws.

I believe in a more general sense that there is a principle that we need to follow here. There are inevitably going to be times when one branch will hold sway over another branch in this government, but which leaves dangers involved. And there are inevitably going to be times, because of what the Constitution says, where a branch, and particularly Congress, will have to enforce provisions for its own Members or for itself.

But what you want to do is to adopt the kind of balancing test where you minimize the conflicts and the potential conflicts that we have involved here. When it comes to the enforcement of statutes, of violations of criminal law or things like fraud, the balancing test that we have used is we will allow the executive branch, the prosecutors to in fact inject themselves into the legislative branch, to indict and to try to investigate Members of Congress. We had, of course, Members of Congress convicted.

But we also know that there are abuses that can occur in that process. There are some who would argue that ABSCAM involved some abuses. There are others who would say, myself included, that the way in which the Justice Department handled the House bank problem raised very serious questions. But the balance there is probably an appropriate one.

The reason that we have an independent counsel statute is that we are trying to strike a somewhat different balance to avoid the potential conflict of people investigating themselves or their friends or allies in the same branch.

The balance test here is a different one. There is no reason to have executive agencies-where the potential for mischief, of getting at or rewarding individual officers or Members of Congress or the institution itself would be very great-involved in this process, and the test it seems to me is solved, if you have an internal office that has independence and some teeth.

Now, similar questions get raised about judicial review, and it seems to me that you have to leave a role for judicial review. Again, where possible, we want to minimize that role and, particularly, we want to minimize the active role that courts will play. A more passive role, particularly as you move to an appeals process, is an appropriate one. But I would be careful, as we go through this process, about making sure that we strike an appropriate balance, when it comes to having courts and trials, which obviously also have some significant potential for abuse.

A third point, there is a lot of concern over whether the Senate should have its own office and the House have its own office. There are many instances where it is appropriate for the institutions to handle their own internal mechanisms. It seems to me there is a strong and compelling case to make this a single Office of Compliance. It would not only save money and streamline the process, but there is no real difference for virtually all of the laws that we are talking about and the procedures that would be followed between

building in that kind of independence and the sense that this is a real and meaningful office, if it were a single office overseeing the entire place.

Chairman GLENN. We do, but you know we have our own separation of powers here between the Senate and the House, which creates a bit of a problem, too.

Mr. ORNSTEIN. It makes it more difficult to work this through in a single way. But if it is possible, it seems to me it would be worth doing.

Clearly, you have to avoid simplistic and blanket solutions here. There are some laws where the letter of the law should apply. There are others, like OSHA, where you may in fact find that it is the spirit in some cases that should apply, and where a phasein is necessary.

Finally, let me just make a point which I believe my colleague on all of these matters Tom Mann will reiterate. I believe the Freedom of Information Act, in particular, is different. It is different, first of all, because where all of the rhetoric we have about how the laws that apply to the American people should apply to the Congress is absolutely appropriately true. The Freedom of Information Act does not apply to the private sector at all. It was a law designed for the executive branch.

This is a very different process and it does not apply and should not apply. It does not apply in the executive branch to political offices. It should not apply to political offices. The Congress as a whole, which is extremely open with the information that it provides, it seems to me it is not appropriate to apply the Freedom of Information Act.

I would very reluctantly, perhaps, accept as a fallback applying some of the administrative functions of Congress to the Freedom of Information Act. But, frankly, if you think about the General Accounting Office, for example, there are a lot of sensitive matters there, sensitive investigations, questions of privacy, just as there are questions of privacy that can apply to other administrative agencies surrounding Congress, and would make me think twice and even three times before applying the Freedom of Information Act at all. So there may be a fallback here, but it seems to me that a very real distinction can be made there, as opposed to laws like OSHA or the various employment discrimination laws.

Let me leave the opening comments at that, Mr. Chairman.
Chairman GLENN. Thank you.
Chairman GLENN. Mr. Mann.

TESTIMONY OF THOMAS MANN, DIRECTOR OF
GOVERNMENTAL STUDIES, BROOKINGS INSTITUTION

Mr. MANN. Mr. Chairman, thank you very much.

I commend you for your willingness to take on a very difficult issue and to try your best to resolve it in this session of Congress. Norman and I have been working over the last 2 years through the Renewing Congress Project to figure out a way to channel all this public anger toward the Congress in productive ways, to actually make changes on Capitol Hill that would improve the ability of the legislative branch to do its job.

Too often, the public anger leads to punitive measures, rather than constructive measures. And I think your challenge here is to figure out how to take all that hostility and energy and convert it into a set of changes that would actually be right and be constructive to the work of the Congress.

This effort now of applying Federal laws to Congress is part of the larger change occurring on Capitol Hill that has been under way for some years and that you have played an important role in, which is changing from basically a patronage-based system to a professional system. You used the term a long time ago "last plantation," and it is true. It is part of the culture of Capitol Hill for decades and decades. But it has to change and it is changing, and this is one important part of that process.

Now, the other thing I would say is that at one level this is a very simple issue. Members of Congress ought to live by the laws that they enact for everyone in the private sector, and I believe that. But it is also an incredibly complicated matter, as the questioning from Members of the Committee suggest.

It is not simple and easy to apply the laws, and your real challenge is to be faithful to the simple objective, but accommodate the complications that inevitably arise once you start going line-by-line and thinking through the various complications and getting this done. So I wish you well in the effort.

I believe that the posture taken by Senator Stevens is understandable, but simply not sustainable in this political environment. I believe change will come. It is really a question of whether you are forced to do it late, kicking and screaming, and get absolutely no credit, or whether you get out in front of it and make it happen yourself in a way that works.

I do believe that the Lieberman-Grassley bill is the mark from which you should begin, which is, as you know, the companion bill to the one in the House authored by Chris Shays and Dick Swett. It is the best starting point for trying to put this together.

The lynch pin is the Office of Compliance, which is a way of dealing with very real separation of powers issues. It also, frankly, puts you in a position to deal with some of the practical problems that arise, questions of feasibility and cost, because you will include as much specific language in the bill as you can, but leave to the office the process of preparing regulations that deal with these inevitable complications. You have a much better chance of getting a workable solution to this set of problems.

You noted that the House and Senate do not oftentimes get along fabulously. Bicameral tensions have increased, of course, over the last couple of years. But I think when it comes to applying Federal laws, the only solution is a bicameral solution, a single set of rules that will apply to all employees of the legislative branch, including the House and the Senate, as well as the many entities that work for both of those Houses of Congress, including the Architect of the Capitol and the Capitol Police and the like.

I think it is appropriate to include the instrumentalities under this, but I urge caution here. The last thing you want to do is in some way weaken protections that now exist for employees of some instrumentalities like GAO and the Library of Congress. I know

that they now have in place a set of mechanisms that provide the guarantees, and why overload an Office of Compliance, if those procedures are workable. Look at that with care. În principle, the law should apply to the instrumentalities. In practice, it may make more sense to allow some separate enforcement of those laws.

I think it is also important, unlike the situation in the bill reported by the Rules Committee, that the Office of Compliance be structured to be as independent of current Members, including the party leadership, as possible. That is, they should not be subject to removal. You need to build some insulation. Just as we need, I think, to involve some outsiders in the ethics process, so, too, we need to set up the Board and to direct this office in a way that conveys to the outside world that this is truly an independent agency within the legislative branch.

Two final comments, Mr. Chairman: The least compelling case in this whole matter is for the Freedom of Information Act. Frankly, I think it is a separate issue. It does not go to the public complaint of laws that are passed for the private sector not applying to Congress. It is frankly a separate issue and it is a very complicated

issue.

Congress is the most open, the most accessible, the most permeable political institution perhaps in the world. It can even do more. It can be more user-friendly to the press and the public, but this legislation is not the place to engage in that. So I urge you to put that at the lowest level of priority.

Finally, in summary, I really believe it is possible to forge a bipartisan bicameral solution to this problem that affords employees of the Congress the protections now enshrined in Federal law for those in the private sector and in the executive branch. The danger here is that overheated rhetoric and punitive actions will get in the way of a practical solution to this problem. I cannot think of any person better suited to deal with this complicated problem of responding to the public anger in a practical, workable solution than you, and I commend you in your efforts to deal with this problem. Chairman GLENN. Thank you.

Do you think there is enough unanimity from your view of this that we could get it through this year?

Mr. MANN. I do.

Chairman GLENN. We are down to about the last 45 or 50 days of legislative time for this year right now.

Mr. MANN. I know it is. I have to say I so regret the failure of the leadership of the other body to take hold of this and move it last year when they were in a position to do so. Things have a way of getting put off, when it makes individual Members uncomfortable. But I honestly believe that you have the capacity to do it.

Let me tell you, this is the one element of congressional reform, along with campaign finance, that attracts the most public attention. There are many other important issues that I care deeply about and Norma cares about and you care about that the public does not give a fig about. But this is one they care about. I think it is doable. You have bills that are basically companion bills and, with two Houses, I think you can do it.

Chairman GLENN. Thank you.
Chairman GLENN. Mr. Lund.

TESTIMONY OF NELSON LUND,1 ASSOCIATE PROFESSOR OF LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW Mr. LUND. Thank you, Mr. Chairman. I am honored to be here. The Constitution does not forbid Congress from granting itself exemption from the laws. But it was as clear to the Framers, as I think it must be to any disinterested observer, that such exemptions reflect a real difficulty with the norms and expectations that make democratic government possible.

James Madison, for example, went so far as to claim that if the people of America ever became so debased as to tolerate such laws, they would be unprepared to tolerate political liberty itself.

There are also more immediate effects. First, Members face greatly reduced incentives to understand the measures they adopt for others in our society. Second, these incentives help cause the enactment of laws that are self-contradictory or virtually incomprehensible to those who are governed by them.

Third, legislators can too easily be tempted to accede to the demands of well-organized interest groups whose agendas may well be adverse to the permanent and aggregate interests of the community. I think examples of these three phenomena are not hard to find.

In light of Madison's vehement opposition to legislative exemptions from statutory law, it is ironic that most of the arguments in favor of the current exemptions purport to be based on the Constitution itself. In my view, these constitutional claims are simply unfounded. If Congress is willing to give its employees the same essential statutory rights enjoyed by their counterparts in the executive agencies and in the private sector, it can do so without violating any principle of constitutional law recognized in the relevant Supreme Court decisions.

I have explained and defended that conclusion in a detailed written statement that I am happy to offer for the record, and I would be happy to answer any questions about it. But I want to explain what I mean, when I say that congressional employees can be given essentially the same rights as those enjoyed by other Ameri

cans.

The most important of these rights, at least with respect to the principle antidiscrimination statutes, are the opportunity for a jury trial in an article III court and the availability of the same remedies offered to other litigants.

There are some differences in the way the current law treats private sector employees compared with the employees of executive agencies. But those differences are quite small, compared with the way that congressional employees are treated. Unlike any other employer in America, each Chamber of the Congress effectively acts as the judge in its own case when one of its employees complains of discrimination on the basis of race, sex, religion, national origin or disability. Until this privilege of self-regulation is surrendered, I do not believe that one will be able to say in any meaningful sense that Congress is subject to the law.

Although I believe the Constitution allows Congress to give its own employees the same legal rights enjoyed by other Americans,