August 10, 1976
Page 26571
MAINE CITIZENS PARTICIPATE IN CONFERENCE ON THE POWERS OF THE PRESIDENCY AND WATERGATE REFORM
Mr. MUSKIE. Mr. President, last year the annual Chief Justice Earl Warren Conference on Advocacy called together many of the leading lawyers, law professors, and other constitutional scholars in the United States to discuss the powers of the Presidency.
The conference sought to explore the nature of the powers granted to the head of a government who was to be selected by its people — a Presidency designed 200 years ago by men of the 18th century who drew from their political experience to form a government with dispersed power.
The conference sought to determine what went awry that brought about a Presidency to be referred as an "imperial Presidency," "runaway Presidency," "ubiquitous Presidency," "isolated Presidency," "expanded Presidency," and an "institutionalized Presidency."
Mr. President, it is with great pleasure that I note the fact that three distinguished citizens of the State of Maine were involved in the work of this conference. They include Herbert H. Bennett, president of the Roscoe Pound American Trial Lawyers Foundation which sponsored the conference, and conferees Scott F. Hutchinson, president of the Canal National Bank in Portland, Maine, and the Honorable Charles M. Pomeroy, assistant justice of the Supreme Judicial Court of the State of Maine who also is from Portland.
Among the recommendations of the conference for the elimination of excessive presidential powers in domestic affairs, the conference suggested the creation of an office of legal counsel for the Congress to serve as a major information center for oversight purposes — a recommendation that was embodied in legislation just adopted by the U.S. Senate — the Watergate Reform Act of 1976.
Two other recommendations of the foundation are wider examination by the Subcommittee on Intergovernmental Relations which I serve as chairman. Those are recommendations to set standards for classification and declassification of information to serve as guidelines for presidential affairs and to define by scope and substance any executive right to withhold information from Congress.
Mr. President, I wanted to express my appreciation for the work of the Roscoe Pound – American Trial Lawyers Foundation and their particular contribution, and that of our distinguished citizens of Maine, to some of the most important legislation pending before the Congress. I ask unanimous consent that a press release describing the recommendations of the foundation be printed in the RECORD.
There being no objection, the press release was ordered to be printed in the RECORD, as follows:
PRESIDENCY POWERS RELEASE
CAMBRIDGE, MASS.— Forty-six of the nation's foremost academic and legislative authorities on the powers of the U.S. Presidency, in a consensus published today, made 28 sweeping recommendations to push aside the "veil of mysticism that has shrouded the highest office in the land."
The overall recommendations call for:
(1) Drastic curtailment of the President's present power to make war or peace by:
Restricting unilateral deployment of U.S. armed forces at any time.
Requiring Congressional full partnership in shaping and in conducting a periodic review of American use of force policy.
Creation of a knowledgeable Joint Congressional Consultation Committee to advise the President.
(2) Striking increase in present Congressional powers over foreign policy by new legislative machinery that would:
Require the President to involve Congress in decision making process and deliberations prior to long term foreign commitments.
Establish a Special Executive-Legislative Group to examine immediately the goals and guidelines of U.S. foreign affairs so as to reestablish a national consensus for future operations.
Create a special oversight agency to scrutinize the Executive bureaucracy in foreign affairs.
Form knowledgeable special advisory and liaison groups to the Executive Office, State and Defense departments.
(3) Elimination of present excessive Presidential powers in domestic affairs — "concentration that is undesirable and contrary to the spirit of our republic" — by having Congress:
Create new Office of Legal Counsel of Congress to serve as a major information center for oversight purposes.
Establish a cadre of professionals — devoid of political patronage — for present and future Congressional committee staffs.
Define by scope and substance any Executive right to withhold information from Congress.
Set standards for classification and declassification of information to serve as guidelines for principal agencies.
Require Senate confirmation of all directors of offices within Executive Office of the President (exempting senior personal advisors to the President), and prescribe their functions and budget by law.
Mandate that all summonsed persons (except President and VicePresident) must appear before Congress.
Reject a permanent Office of Special Prosecutor, leaving that responsibility to U.S. Department of Justice.
The distinguished group — composed of historians, political scientists, constitutional law professors, international statesmen and scholars, noted journalists, top Congressional staff members and state supreme court justices — met at the Annual Chief Justice Earl Warren Conference on Advocacy in the United States.
The invitational Conference was sponsored last June by the Cambridge-based Roscoe Pound– American Trial Lawyers Foundation as one of its major public interest plenary sessions. The recommendations — released today in published form — culminated more than six months of endeavor to the consensus.
"These scholars (conferees) know very well," said Herbert H. Bennett of Portland, Me., Foundation President at the time of the Conference, "that the Executive branch of our government, as well as other branches must no longer delude themselves that our country has a favored destiny."
Joining in Bennett's comments was Theodore I. Koskoff of Bridgeport, Ct., chairman of the Conference and now Foundation President.
"Constant vigilance and revitalization of its governing institutions, in a constantly changing society, are of immediate concern," the noted legal leaders said in stressing the timeliness of the Conference's recommendations and published report.
"Winds of disturbance, whether economic or military, evidenced anywhere in the world, affect this nation. Because domestic affairs have become interwoven with foreign affairs, there is a compelling need for demystifying foreign diplomacy or foreign affairs for the public," they added.
The Foundation, a noted national legal research organization, serves as a conduit for the consensus, as the media to publish the Final Report and distribute it nationwide to educational institutions, governmental agencies, news media and other organizations to enable it to be seriously considered by those who have a responsibility to bring about change for the welfare of our Republic.
In-depth working background papers written by three of the country's most distinguished academicians — all of whom have devoted their intellectual life to passionately studying our system of government — were used by the Conferees in their deliberations.
The papers were by: Prof. Raoul Berger, Charles Warren Senior Fellow in American Legal History, Harvard University Law School ("Presidential War Powers"); Prof. Louis Henkin, Hamilton Fish Professor of International Law and Diplomacy and Professor of Constitutional Law, Columbia University School of Law ("Presidential Power in Foreign Affairs"); and Prof. Philip B. Kurland, William R. Keenan, Jr., Professor in the College and Professor of Law, University of Chicago Law School ("Toward a Responsible American Presidency").
In summaries preceding the recommendations in the Final Consensus Report (in which there were some dissents as noted in the published version) the Conferees — many of whom presently are working in government in a capacity to give them an insight into the working of the Executive branch — stated :
ON PRESIDENTIAL WAR POWERS
... Congress is still too little involved in American war-peace decisions (and the Conference recognized) that American use of force decisions are left wholly to Presidential discretion when Congress remains silent ... and (there should be) a striking increase on Congressional use of force influence and a corresponding decrease in Presidential war powers ... to ensure checks and balances in setting American war-peace policy.
ON FOREIGN POLICY
... One overriding concern of the Conference was the need for a complete examination of the goals and guidelines in foreign affairs to reach a national consensus, taking into account the new significance of economic factors, particularly food, fuel and finance ... (and) ... specific recommendation to meet (these) concerns revolve around improving Executive-Legislative relationships (through) Congressional participation in policy making decisions; Congressional oversight committees and Congressional access to information.
ON DOMESTIC AFFAIRS
... the American presidency has accumulated too much power in domestic affairs (and) ... this concentration of power was undesirable and contrary to the spirit and history of our republic ... recognizing ... that no constitutional changes were necessary, or desirable, as a response
to ... excessive executive power ... the Conference agreed that a primary avenue for controlling inordinate power in domestic affairs was in improving Congress' ability to perform its oversight responsibilities.