just to follow through on the allegations that were being made by various underworld people. And, you know, if that process started-let's say that the Donovan process, some of those leaks came out during a Presidential election where President Reagan says, well, I would like to have Raymond Donovan as my Secretary of Labor-all of it ultimately fairly satisfactorily, at least in Mr. Donovan's eyes and many others, in the end, but certainly would not have been cleared up during the election process. It could have amounted to the nonelection of Ronald Reagan. Or Burt Lance in the case of Jimmy Carter. Or you can cite one or two in I guess every, almost every presidency.

So you have an artificiality determining who is President of the United States, something that shouldn't be the determinant.

On the other hand, I see on the other side of that question it might be a very good thing for a President to have to state in advance who he really does want to serve in his Cabinet. And it might be a great pressure on him to be less partisan and less political in those choices.

So that is a plus in my book. So I see two sides of that, and we could go into that for hours.

But I see that FBI process as not really being able to start until the President is inaugurated.

Dr. DAVID. Well, I would think parts of it could be started informally-but I agree, in fact I believe that I don't think it's practical for a Presidential candidate to announce his Cabinet before the election.

Senator HATCH. But it's going to happen; there is no way he is going to avoid it, because there is no way you are going to keep that absolutely quiet in our present system.

Dr. DAVID. Yes.

Senator HATCH. There is constant badgering by various sources and people in our system to find these things out. We can't keep top secret information that may be crucial to the national security interests of this country-we can't keep that confidential. How are we going to keep those things confidential?

And even if we did-even if we were successful in keeping them confidential, it seems to me there would be widespread speculation anyway.

Dr. ORNSTEIN. Oh, sure, but I think, Mr. Chairman, that there are political reasons for Presidential candidates not to reveal their Cabinet choices, and those political reasons will remain unless we absolutely require it.

When Jimmy Carter was running in 1976, part of his campaign theme, as Hamilton Jordan expressed it even after the election, is we are not going to have people like Cyrus Vance and Zbigniew Brzezinski running our foreign policy. It was an important theme for him during the campaign.

Senator HATCH. That's right.

Dr. ORNSTEIN. Now, after the election, I think another dose of reality set in and, of course, we saw Vance and Brzezinski, and I think appropriately so.

There were political reasons for stating that during the campaign.

Senator HATCH. Or Reagan stating about the Trilateral Commission, and look how many Trilateral Commission members that have been members of both administrations.

Dr. ORNSTEIN. Sure, the political needs of the campaign conflict with the notion of naming specific individuals to a Cabinet, and, as long as that is the case, no matter what

Senator HATCH. Of course, I would argue against that. I would say, well, that would tend to make the system more honest, because if Carter is going to appoint Vance and Brzezinski, then, by gosh, he shouldn't be running them down during the campaign or allowing his staff people to run them down.

Dr. ORNSTEIN. Of course, what would probably end up happening is that he would have ended up with people less qualified or experienced being appointed during the heat of the campaign.

Senator HATCH. Or compromise people who would be acceptable to both sides, I suspect.

Dr. ORNSTEIN. The politics of the campaign, I just think, are not conducive to the selection of a Cabinet, and that, of course, is what we have seen in a parliamentary system where they have even more reason to make those choices early.

Senator HATCH. That's really fascinating; I could ask a lot of questions along those lines. Had President Reagan, for instance, chosen "Scoop" Jackson as Secretary of Defense, some people suggest that he might have had an easier bipartisan foreign policy on many of these issues.

Well, that may or may not be the case, but we don't know what the outcome will be. I guess part of the problem with constitutional amendments is we like to anticipate the problems; it is the unanticipated questions we really worry about that Senator Mathias was chatting with us about when he testified.

Well, there are so many things that I would like to ask. Let me just ask a couple of more.

Is there any advantage to convening a new Congress on November 15, as the proposed amendment states, rather than after the New Year, on January 3, as presently is the case, required by the 20th amendment?

Dr. ORNSTEIN. In my testimony I address that question at least briefly. I think there is a value in the transition for Congress as well. It has been argued that we have had too many lameduck sessions lately. That is not for structural reasons, I think, and if you have Congress convening early you would have the equivalent of a lameduck session with Congress having to come back right after an election tired and with a lot of new Members who haven't had a chance to assemble staffs or to go through what I think is a very useful process of orientation now before having to get right into a process of a new budget and a lot of other crucial issues.

It is a useful time in a hiatus for a new Congress as well, and we have managed to deal with our policy problems, if they exist, during this gap through a lameduck session, and I don't see any evidence that that lameduck Congress isn't granted full legitimacy by the American public.

Senator HATCH. Would either of you-

Professor Wayne. I would agree with Dr. Ornstein. It seems to me that the present transition is a useful time not only to rest but

to reflect on what lies ahead, to get organized, to get ready for the confirmation process, which, as I understand it, tends to begin even before the inauguration.

And there needs to be a time when Congress rests, a time when Congress gets organized, and then a time when it considers its presidential relationship. And I don't think that time should be telescoped into 1 week. It's just too short.

Dr. DAVID. It seems to me that the Congress does need at least several weeks before January in which to get organized. The handling of the messages, these very important messages that come over in January, is almost impossible before Congress has got its committee structure set up and working and some of the other organization problems that arise for every new Congress after the election.

So that in my own proposal I was suggesting convening on the first Monday in November. I don't know that it needs to be done that soon, but I would think it certainly needs to be done before the first of December.

Senator HATCH. Well, it has been suggested that this proposal is necessary so that the newly elected President will prepare-you have alluded to this, Dr. Ornstein-will prepare the next budget and deliver the State of the Union Address, that is, the newly elected President will do so.

But I suppose—and tell me if I am wrong on this-that if these are valid problems, we could pass legislation to get around them without the need of a constitutional amendment, is that correct? Dr. ORNSTEIN. Precisely.

Professor WAYNE. Yes.

Senator HATCH. Is that correct in your eyes, Dr. David?

Dr. David. Well, I think you have got to have a constitutional amendment to change the terms of office which are now frozen in the Constitution. You can't very well convene Congress before their term of office begins.

Senator HATCH. I agree, but with regard to budget matters we could change the respective time periods.

Dr. DAVID. When the budget comes over?

Senator HATCH. Sure, we could change that, we could change the State of the Union Address.

Dr. DAVID. Well, they have been slipping in recent years.

Senator HATCH. Well, I see some advantages to that. I do think if we are going to have a system that works, perhaps the budget would be better 3 months after the new President comes in. Now, he has one-quarter of the old President's budget, but then he has to come up with a new budget for that next year-so he loses a quarter, but maybe has an-that militates in favor of what Dr. David is saying, because our budgetary year ends, of course, September 30, and the new President is installed in that first week in October, then he would put up with the budget of the prior President through the end of the year, but then would be responsible for the next budget, if we would change to a calendar year, for instance, rather than the fiscal year.

So there are some interesting and intriguing problems here. And I would like to have all three of you, as well as the other witnesses, maybe spend even a little bit more time on this to see if we can

give me as many arguments as you can pro and con, for us on this subcommittee, and, of course, the full Judiciary Committee, too, and let's see what we can do here.

I am not sure, having listened to both sides, just what is the best approach to take here, and so we are open to an awful lot of advice and counsel.

Senator Pell, did you have any questions?

Senator PELL. No further questions, thank you, Mr. Chairman. Senator HATCH. All right, then, what we will do is keep this record open for all Senators on this subcommittee and any Senators of the full Judiciary Committee who would like to to submit questions on this very intriguing and important issue.

I would also like all three of you, and all witnesses who have testified today, and anybody else who is interested, to consider my idea of a clarifying amendment that might get around this problem that this proposed amendment in and of itself may not be a significant enough amendment to require the constitutional process to come into being.

But it may be a significant part of the clarifying amendment, and that may be-for instance, I think it's time to get rid of the unfaithful selector and put that to bed, and we could do it on a State-by-State basis, but let's put it to bed and resolve a couple of these things that virtually everybody agrees on.

All three of you would be of inestimable help to this committee if you would give us your ideas in this area, and keep in mind I don't think we could, through a clarifying amendment, put through very many substantive ideas. I think we are going to have to be basically clarifying, these ideas are going to have to be basically clarifying and procedural ideas that will help our Constitution to function more efficiently and better in the eyes of everybody.

With that I just want to personally thank you for the effort you have put forth and for the time we spent here together, and I want to thank Senator Pell and Senator Mathias for the work that they have done.

And with that we will recess until further notice. [The subcommittee adjourned at 11:57 a.m.]

APPENDIX

ADDITIONAL SUBMISSIONS FOR THE RECORD

SHORTENING THE INTERREGNUM

The 20th Amendment to the Constitution (1933) reduced the period between the election and inauguration of Presidents from four months to ten weeks. This amendment, ratified more than half a century ago, during the Great Depression, expressed national recognition of the difficulties caused by a protracted interregnum in an age requiring effective government and continuous decision. It expressed also repognition of the embarrassment to the democratic process of lame-duck Presidents and Congresses.

The question now arises whether, as the velocity of history continues to accelerate, the interregnum should not be further reduced and new Presidents inaugurated on 20 November instead of on 20 January. Few features of the American political system dismay our friends (and doubtless gratify our enemies) more than the yawning gap between election and inauguration a period of inevitable indecision, even paralysis, in the operations of our government. No other system has such comparable delay before a new government takes over. In Great Britain, when one government gives way to another, the new prime minister moves into 10 Downing Street overnight. The French Constitution provides for a period of between 20 and 35 days between the presidential election and the assumption of office by the new President. Under the 20th Amendment, the American Constitution provides for about seventy days.