December 18, 1973
Page 42104
Mr. ROTH. Mr. President, I hope that the courts will not be so expansive in their interpretation of information needed by Congress that there is substantial erosion of the doctrine of the separation of powers and encroachment on the ability of the President to have free, frank, and confidential discussions with his personal advisers. Nor should the courts be so restrictive that Congress’ access to information is even further limited. I would warn that by not providing guidance on where the balance is to be struck, we make both courses possible.
I want to express my appreciation to Senators ERVIN and MUSKIE and their staffs for working with me and my staff to produce a bill which we could all support. Finally, in the drafting of most legislation, many unrecognized hands play a part. I want especially to express my appreciation to Prof. Alexander Bickel, to the Civil Rights-Civil Liberties Research Committee of the Harvard Law School, and to the American Law Division of the Congressional Research Service. All provided me with invaluable guidance and advice.
Mr. MUSKIE. Mr. President, I want at this time to express my thanks to the distinguished senior Senator from Delaware (Mr. ROTH) for helping so much to make this legislation, as he said, "a bipartisan approach" and to the chairman of our committee, Senator ERVIN, for the excellent work he has done over the years in finding a means to resolve this serious constitutional problem.
This legislation, both the bill and the concurrent resolution, represents a truly moderate and restrained congressional response to what we all remember as an immoderate assertion this spring of unrestrained executive authority to withhold information from Congress. Many of us and many Americans were truly shocked when Attorney General Richard Kleindienst told our joint hearings that Congress could only obtain information the President consented to disclose.
"Your power to get what the President knows," he maintained, "is in the President's hands."
In answer to that sweeping claim, we have written legislation implementing the basic constitutional principle of checks and balances. This legislation provides that when a conflict over access to information cannot be resolved between the executive and legislative, it can be submitted in an orderly fashion to the judiciary for resolution.
I do not anticipate that many such conflicts will arise. When they do, however, this legislation insures that Congress will act responsibly – since no court suits can be initiated without the approval of at least one House – and requires that the Executive also act responsibly in considering and setting forth its reasons for withholding information Congress seeks.
Such actions will present true cases in controversy. The courts will have to resolve which of two conflicting duties – that imposed by a congressional subpoena or by a contrary Presidential instruction – an official must obey. In resolving such controversies, I would expect both the Congress and the courts to seek the best possible balance between two standards which must, of necessity, conflict and which can only be resolved on a case-by-case basis.
The first standard is the one stated in S. 2432 and S. Con. Res. 30 – the Congress’ need for information "to enable it to exercise a legislative function under the Constitution." And the second – unstated, but understood by all of us – is the parallel need of the executive branch to insure its own orderly functioning. As a general matter, it may well be proper to assure officials confidentiality for their policy making deliberations. But secrecy for such discussions, does not always guarantee candor or completeness – as we discovered in reviewing the history of our involvement in Indochina – and such secrecy can promote unfair advantage for special pleaders or even cut high officials off from unpopular views they should hear and evaluate.
Privilege cannot be automatic at any level; it can be presumed but not bestowed by law. And, as we discovered in long conversations in committee, there is no way to draw a line and declare by law which Federal officials or Presidential intimates acting in what capacity on which policy matters are to be guaranteed confidentiality for their conduct.
Responsible government must insure accountability of public servants to the people through the political process. The legislation we have before us does much to promote that accountability, and I am proud to join my colleagues in commending it to the Senate.
Mr. President, I yield back the remainder of my time.