November 5, 1975
Page 35187
Mr. MUSKIE. Mr. President, I rise principally on the basis of the experience I have had in the Committee on Government Operations and the Budget Committee in open meetings, including markup and conference sessions.
I had some of the misgivings that other Senators have had and have experienced on the floor of the Senate with respect to a consistent open rule, but under the experience we have had for the last 3 years, beginning with the writing of the Budget Control Act in the Committee on Government Operations 3 years ago — and since then in the Government Operations Committee and in the conduct of business in the Budget Committee — we have operated fully with an open meeting rule, consistent with the original text of Senate Resolution 9.
Despite the warnings last year that open meetings would inhibit frank discussion and compromise in the committee, I have found just the opposite. Open meetings have encouraged responsible decision making. They have improved our access to public opinion, and they have broadened both the debate and public involvement in deciding where our tax dollars will be spent.
From the point of view of the media, I find that they have found these open sessions extremely enlightening in terms of understanding some of the complex issues and problems with which we have had to deal in this new budget process.
We in the Budget Committee also have had open conference sessions with the House Budget Committee on the first concurrent resolution. That, by traditional standards, surely was a hazardous undertaking. This was a new process which Congress had never undertaken before. We had gotten through our respective Houses successfully and survived; but in connection with the question of accommodating the kind of debate and compromise in conference which we had come to expect in the tough kinds of confrontation we have between the two Houses, there was some danger that the process might be perceived as extremely provocative, abrasive, divisive, chaotic, or what have you.
There was some fear that having open conferences with those risks was a hazardous undertaking. On the contrary, I think the press were impressed by the fact that we were able to disagree constructively, that we were able to debate our disagreements and reach constructive conclusions.
I believe that the general reaction of the press, insofar as I was exposed to it, was most positive.
So I say to the Senate that, as the one committee which has operated under the open rule that was put into our charter, into the statute which created the process, the experience has been wholly positive, without any negative implications whatsoever.
It is on the basis of that experience, Mr. President, that I joined in cosponsoring Senate Resolution 9; and it is on the basis of that experience that I urge the Senate to adopt that kind of open rule for all Senate committees. I see no risks in it.
I believe that the five reasons stated in Senate Resolution 9, in the original text, for closing meetings, are sufficient to protect any real need for closed meetings that anyone could conceivably conjure up.
I ask unanimous consent that those reasons be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
"(b) Each meeting of a standing, select, or special committee of the Senate, or any subcommittee thereof, including meetings to conduct hearings, shall be open to the public, except that a portion or portions of any such meeting may be closed to the public if the committee or subcommittee, as the case may be, determines by record vote of a majority of the members of the committee or subcommittee present that the matters to be discussed or the testimony to be taken at such portion or portions—
"(1) will disclose matters necessary to be kept secret in the interests of national defense or the confidential conduct of the foreign relations of the United States;
"(2) will relate solely to matters of committee staff personnel or internal staff management or procedure;
"(3) will tend to charge an individual with crime or misconduct, to disagree or injure the professional standing of an individual, or otherwise to expose an individual to public contempt or obloquy, or will represent a clearly unwarranted invasion of the privacy of an individual;
"(4) will disclose the identity of any informer or law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement; or
"(5) will disclose information relating to the trade secrets or financial or commercial information pertaining specifically to a given person if—
"(A) an Act of Congress requires that information to be kept confidential by Government officers and employees; or
"(B) the information has been obtained by the Government on a confidential basis, other than through an application by such person for a specific Government financial or other benefit, and is required to be kept secret in order to prevent undue injury to the competitive position of such person.
"Whenever any hearing conducted by any such committee or subcommittee is open to the public, that hearing may be broadcast by radio or television, or both, under such rules as the committee or subcommittee may adopt.".
Mr. MUSKIE. Mr. President, I intend to vote to reject the Rules Committee language contained in Senate Resolution 9 that would limit drastically the open Senate meeting provisions in the Government in the sunshine bill.
In doing that, I hope that we can restore the original language approved this summer by the Government Operations Committee, which would require open meetings by Senate committees, joint committees, and conference committees, except in certain circumstances.
As a long-time supporter of open committee meetings, I believe that failure to reject the current language of Senate Resolution 9 would mean a giant step backward in meeting our obligation to
open up the decision making process in Congress.
I am especially concerned because the current language would repeal the provision of the Budget Reform Act that requires open meetings by the Senate Budget Committee.
As Budget Committee chairman, I can testify to the success of our present open meetings rule. I want to see that requirement continued.
Despite warnings last year that open meetings would inhibit frank discussion and compromise in the committee, I have found the opposite. Open meetings have encouraged responsible decision making. They have improved our access to public opinion. And they have broadened both the debate and public involvement in deciding where our tax dollars will be spent.
Mr. President, it might help to remember the times we live in.
We have never, in modern times, seen public confidence in Government so low. We can congratulate ourselves for our conduct in exposing Watergate corruption, but we cannot rest until we take the affirmative steps necessary to restore public confidence in Government.
Louis Harris stated recently that 63 percent of Americans report that "the people running the country do not care what happens to you," up from 33 percent in 1966. Forty-one percent report that "I feel left out of things going on around me," up from only 9 percent in 1966.
During that same period, the number of Americans who expressed great confidence in Congress went from 42 percent to 13 percent, and in the executive branch, from 43 percent to 13 percent.
Finally, 85 percent of all Americans feel that most politicians are afraid to tell it like it is, to tell the public the hard truth about the key problems of today.
While Harris found deep frustration with Government, he also found a deep desire by people to participate in Government — to be let in on the hard facts, and have a chance to make an impact on Government decisions.
That deep frustration is very real, I can say from personal experience. I have seen it first-hand among the voters in Maine, as I am sure all of you have seen it in your own States.
I do not know many of those frustrated citizens who would be satisfied with the current language. It shows a clear double standard in stating, "OK, the executive branch better open up its meetings, but we will keep ours closed."
That kind of double standard certainly will not help restore confidence in Congress.
The public instead would be moved to ask, "What is the Senate afraid of? Is it afraid to tell us where it stands on issues? Is it afraid to show us how Government works? What has it got to hide?"
Indeed, Mr. President, what have we got to hide? If any of us here are afraid to tell people how things really are, then we are in the wrong business. We are certainly not cut out for a career of public service.
Remember also that we are not taking a perilous step into the unknown. By adopting an open meeting requirement, the Senate would simply be catching up with the House, which requires all committee meetings to be open, unless a majority votes to close them. We would be catching up with several Senate committees, and with many State and local governments which long ago adopted and used successfully the principle of open meetings.
Once the current language of Senate Resolution 9 is rejected, I will urge adoption of the sunshine bill, S. 5.
We must enact a sunshine bill that opens up congressional committee meetings, that requires open meetings by executive agencies, including meetings to conduct hearings, and that prohibits ex parte contact in any on-the-record agency proceeding.
Once we have completed that task, we can be proud to have reaffirmed the general principle that the people must decide. We can be proud to have taken a simple, but profoundly important step toward restoring faith in Government.
Mr. President, I should like to ask the Senator from Florida one question, so that I might understand fully the meaning of the committee amendment.
Mr. CHILES. I yield.
Mr. MUSKIE. I have listened to the distinguished chairman, Senator CANNON, as to his interpretation of the committee language; and I was reassured at least by the general intent that Senator CANNON expressed. But as I understand this language, what troubles the Senator from Florida — and if it is correct, it will trouble me — is this: The committee language would permit any committee to close any meeting for any of the five reasons stated in the original text of Senate Resolution 9, or for no reason at all — simply because a majority of the committee wished to close that meeting. Am I correct?
Mr. CHILES. I think that is correct. It would also allow a committee, at the beginning of a session, in adopting its rules, to just adopt a rule that all its meetings would be closed, period.
Mr. MUSKIE. It could adopt a rule that would close its meetings for the session?
Mr. CHILES. For the session; that is correct.
Mr. MUSKIE. Without the necessity to reconsider that position at subsequent individual meetings?
Mr. CHILES. I think that is correct.
Mr. MUSKIE. That is the way I interpreted it. I ask the Senator from Nevada about that.
Mr. CANNON. I wish the Senator would ask me, as chairman of the committee, because I say that the interpretation is categorically wrong; and a reading of it will make very clear that it is wrong. The author of the amendment is here, and he can speak to it himself.
Mr. MUSKIE. May I read the language that troubles me and ask the Senator?
Mr. CANNON. Certainly.
Mr. MUSKIE. The language begins, "Each meeting," and then I go to line 22: shall be open to the public unless any such committee or subcommittee thereof in open session determines by a record vote of a majority of the Members of the said committee or subcommittee that the proposed meeting shall be closed because of the nature of the matter to be considered by that committee or subcommittee.
What troubles me about that language is that the words " nature of the matter" are not defined. "Nature of the matter" undefined could mean anything that any Member suggested as a reason.
Is it that loose, may I ask the Senator?
Mr. CANNON. No. I say categorically that it is not that loose.
It relates back to the premise which is substantially the same as the premise of the Senator from Florida, which follows:
... unless the testimony to be taken at that hearing may relate to a matter of national security, may tend to reflect adversely on the character or reputation of the witness or any other individual, or may divulge matters deemed confidential under other provisions of law or government regulations.
In other words, we start with the premise that the meeting is open, and it does leave to each committee the right to adopt its rules at the beginning of the session, if it so desires, in which event it would have to take action in open session and specify under what terms and conditions, subject to this limitation, it could close the meeting by majority vote.
Mr. MUSKIE. I should like to follow my question with another.
The Senator from Nevada has said that the words "nature of the matter" are intended to be defined by the language on page 3, lines 18 through 22. Does that language also apply to meetings other than hearings? Because that language in parentheses on page 3 appears to modify only the word "hearings." I am concerned, also, with conferences and markup sessions.
Mr. CANNON. It does refer to both. Most of the committees already have prescribed the hearings to be open. "Meetings" is all inclusive, and includes the term "hearings."
The Senator has pointed out a problem that, in my judgment, is not precisely in this one, but it relates to the conference committees with the House which he mentioned earlier.
I ask this of the Senator: Did he ever, in connection with a conference with the House, have a caucus among some of the majority or minority members of the conference to try to determine the position?
Mr. MUSKIE. With respect to the Committee on the Budget?
Mr. CANNON. Yes.
Mr. MUSKIE. I think we probably did.
Mr. CANNON. I am sure that they did, and I am told that they did. This points up the fallacy and the difficulty of the whole proposition. I am serving, right now, as a member of the conferees on the Energy Committee, as is the distinguished Senator from South Carolina, who just came in.
Mr. MUSKIE. I am a member, too, although I have not been able to attend.
Mr. CANNON. We acted immediately, when that conference was organized, to open the meetings to the public. Then what did we do? We had to get confidential information that could be presented to make an assessment as to what our position would be. We had to find out the
position of the administration. We had to find out the position of the House. We have had caucuses, we have had one every day. I have one right here, on my schedule for tomorrow morning. We had to develop in closed caucus, if you will — we can call it anything we want, but we had to develop a position that would permit us to go into the conference and try to develop some legislation out of that conference.
I am simply saying that we are using a lot of fancy terms as window dressing and we are going right around and doing the same thing. Sure, that energy conference is open and the room is filled there. One cannot get in without walking in the back and going down the aisle and fighting one's way in. I have attended a lot of caucuses to try to develop a position, to consider the administration's position, to decide how far we can go, what kind of a compromise we can get, to be briefed by the staff people on the effect of these things. Then we go in and present our position in open conference, in open session — which I approve of. Any votes that we take will be voted there in open session.
Mr. MUSKIE. I think that is a matter that can be covered — matters similar to that are covered by the second exception to the original resolution, that a meeting can be closed for the purpose of discussing or taking testimony that will relate "solely to matters of committee staff personnel or internal staff management or procedure." It is a simple matter to add language that will cover the contingency that the Senator describes.
May I say that I think it was in the spirit of that that we held our caucuses — very few caucuses, I might say — in the conference on the Committee on the Budget.
If we go to the other side, there is some need for privacy in developing matters for negotiation. I would not challenge that. But I do not think the need for that kind of exception justifies adapting a rule that will permit broadening the exception to closed meetings for frivolous reasons.
Mr. CANNON. But the Senate's proposal does not permit that. A lot of people have read into it things that it simply does not do.
Mr. MUSKIE. Let me read the next language, which troubles me more than the language we have just been discussing. This begins on line 4 of page 4:
... unless any such committee shall, following the appointment of its membership at the commencement of each Congress, adopt rules specifically prescribing a different procedure to protect its own needs and at the same time conform to the public interest ...
It seems to me that, on its face, that language would permit a committee to adopt a closed rule for the remainder of the session.
Mr. CANNON. I say to the Senator, that was not the intent and that is not our advice from our drafting people as to what it does. It certainly was not intended.
In other words, the intent was that a committee could adopt, at the beginning of a session, a rule with relation to these exceptions.
Mr. CHILES. Mr. President, I understand this is all on my time right now.
The PRESIDING OFFICER. The time of the Senator from Florida has expired and the Senator from Nevada has 20 minutes.
Mr. CANNON. Mr. President, if we need to carry it further, I shall yield further time on the bill.
Mr. MUSKIE. I do not need additional time myself, but I think the answer to that question would be very helpful to me. I am not challenging the Senator's intent, but that language that I just read is particularly troublesome to me. It is really of more concern than the earlier language, which I think the Senator probably has covered by interpretation. This language would seem to open the doors to closed rules, and that troubles me.
Mr. CANNON. I am advised by our drafters and by our Parliamentarian Emeritus that it relates back to previous language on line 18, page 3 :
(unless the testimony to be taken at that hearng may relate to a matter of national security, may tend to reflect adversely on the character or reputation of the witness or any other individual, or may divulge matters deemed confidential under other provisions of law or Government regulations)
That simply says that if a committee wants to adopt a rule at the beginning of the Congress to govern its procedures, it can do it then, rather than come in and say, "We have a hearing today and we want to consider the terms of the Manhattan Project and therefore, I will put a motion to have us go into closed session."
That is the sort of thing that I think would encumber the work of the committee by having to act each precise time it wants to go into closed session. If it has adopted a rule — for example, I serve on the Committee on Armed Services. I should think that the Committee on Armed Services would want to adopt a rule — which, incidentally, must be adopted and voted on in open session — at the beginning of the session that says that when a matter involves the national security of the United States, the chairman shall have the authority to call an executive session of the committee, and let the committee vote on that as a rule. If they approve it, then he would have that authority to say, "The hearing today involves matters involving national security or classified information" — which is the same thing — "and therefore, the hearing will be closed."
Really, the difference between the amendment of the Senator from Florida and the amendment of the Senator from West Virginia, or their positions, is very negligible. In both instances, the hearing would be open, the meeting would be open, unless action is taken to close it.
Substantially, in both instances, the reasons for closure are the same.
The basic differences are two: One, the amendment of the Senator from West Virginia leaves out special committees and select committees that ought not to be in there. When we form a special committee on the floor of the Senate, we give them instructions.
I imagine that when we formed the select committee for the investigation of the CIA, we did not want to write in there that they had to hold all their meetings in open session, because they certainly could not do it effectively, in my judgment. Therefore, those things ought to be considered at the precise time.
On the other hand, if we form a select committee to investigate the Small Business Administration or matters relating to small business, it would seem to me that those meetings ought to be held open. So that is one difference.
The other difference is this: the committee could act at the beginning of the session, in open session, to adopt a rule and say, "Under these conditions, we will now vote to approve a rule to permit that type of procedure." If they do not do that, and they would not do it under the amendment of the Senator from Florida, each time that they go into a meeting and start a meeting open, they define what the reason is that they need to close it and vote on it at that time.
Mr. PERCY. Mr. President, will the Senator yield for a question?
Mr. MUSKIE. May I comment on that?
Mr. CANNON. First, let me give the Senator an opportunity to comment on that.
Mr. MUSKIE. Just 30 seconds, because I have used up more than my fair share of the time.
I still think that language is subject to the interpretation that I put upon it, and I think that either ought to be stricken or modified to indicate more clearly the intent which the Senator has just spelled out, and which I think is a vast improvement and expresses what the committee had in mind in the language of the bill. I think we ought to adopt a rule here today that will govern committees, that it ought not to be an open question at the beginning of each session of Congress.
We should adopt it now and establish it so that we can become accustomed to it and use it and not leave it open to further juggling in subsequent Congresses. That is my own view of that language.
Mr. CANNON. I certainly would have no objection, though I do not know about the Senator from West Virginia, to inserting, after the word "interest", "in accordance with the limitations in this paragraph heretofore set forth."
Mr. MUSKIE. Why should the question be opened at each session of Congress?
Mr. CANNON. Because a committee may, from 1 year to 1 year, decide to change its basic rules. Almost every committee adopts rules to govern its procedure at the beginning of Congress. The matters relating, for example, to Armed Services Committee matters, 3 or 4 years ago, all would have been thought to be classified. Yet in my own Tactical Air Power Subcommittee, we have held a lot of our hearings open this year because we have been able to direct the administration to come up and prepare to testify in open session, and then only hold closed sessions when we had to go in for strictly security matters. So times change. This is why I do not like to see something fixed here. We want to leave that up to that committee and its members to determine.
You are going to have to assume that every member of a committee is operating in good faith. I think you also have to assume that secrecy is one thing and confidentiality is another. We saw the results of secrecy in the Watergate affair,and that is what brought this whole thing on. We do not want to see that again.
But we must recognize that there has to be some confidentiality in matters. The Attorney General just a short time ago said, "A duty of complete disclosure would render impossible the effective operation of Government"