The President's memorandum of May 2, 1963, was revoked by section 703 (c) of Executive Order 11222. However, the substance of the material quoted above has been retained for use within the executive agencies and now appears in the Federal Personnel Manual, chapter 735, appendix C, page 735-C-4.

Mr. JACOBSON. Maybe the easiest way to clarify this and provide this answer would be through a provision for the record of the definition of employee in the statute and then the Commission's interpretive instructions that have been issued to explain the things that distinguish an employee from a nonemployee. We can do that for the record and will be glad to do so.

Mr. CLESNER. Now, on page 7, what happens-where it is required that a statement that the appointee is or will be assigned only to those duties for which the appointment is made, what if he isn't?

Mr. JACOBSON. If he is not, we direct the termination of that appointment. We reviewed in this 9-month period I referred to earlier, from which I used the statistics, we reviewed a

Mr. CLESNER. You do samplings?

Mr. JACOBSON. Actually a 100-percent review of the reports we received and it was necessary in 21 cases, as I recall, to direct the termination of appointment as a consultant or an expert because we found it didn't in some way live up to the requirements that we had laid down. That is only 21 out of some 8,000. Some cases are still under discussion with the Agencies. They haven't resolved them all. There are a few still being worked on.

Mr. CLESNER. You referred to the fact that "the Civil Service Commission may, in its discretion, authorize such less investigation as may meet the requirements of national security." Now, that is the quote, and then you also state the words "less investigation," in your opinion, still requires some investigation.

Isn't that in the original sentence in the context of meeting the requirements of national security?

Mr. JACOBSON. Yes. Authorize such less investigation as may meet the requirements of national security.

Mr. CLESNER. What might occur if we have an advisory panel which the administrator of the Agency might make a finding or determination that no requirements of national security are involved? Would that still require investigation under your interpretation?

Mr. JACOBSON. I don't know. Mr. Mondello?

Mr. MONDELLO. I think that raises a question whether the Agency head wasn't violating the terms of the Executive order. In the absence of the Commission coming in and saying

Mr. CLESNER. I cited the language of the Executive order. How is the language or the intent of the Executive order violated?

Mr. MONDELLO. Well, I don't know in context how much more there is around the statement that appears in our testimony at page 13, but it seems to me it gives the Civil Service Commission discretion to go for lesser requirements, and it doesn't authorize the agency to do anything about making declarations about whether a particular assignment will or will not be such as to permit less investigation to meet the requirements of the national security. It may be just a choice of the President as to placing that burden on the Commission and nowhere else. It might also be that as we have interpreted that language, we interpret it to mean that the Commission may authorize some lesser investigation but not no investigation.

I think what you are saying is that an agency head would declare there is no national security interest

Mr. CLESNER. If he makes a finding

Mr. MONDELLO. I wonder if under this order he is free to make that finding. Any interpretation of that sort isn't a matter for the Commission or agency head. I think it is for the Attorney General under the order. Anybody who has any doubt as to what that order means has to go there by explicit direction in the order and even as a general matter the Attorney General would be the interpreter of such pronouncements by the President.

Mr. CLESNER. Mr. Chairman, that is all.

Mr. JACOBSON. Precedent to this is the statement that all appointments, each appointment, has to be made subject to investigation and the question is what is the word investigation to be applied to. Mr. MONAGAN. Thank you very much.

Gentlemen, we will adjourn until Thursday at 10 o'clock.

(Whereupon, at 4:30 p.m., the subcommittee was adjourned to reconvene on Thusday, March 19, 1970, at 10 a.m.)

PRESIDENTIAL ADVISORY COMMITTEES

THURSDAY, MARCH 19, 1970

HOUSE OF REPRESENTATIVES,

SPECIAL STUDIES SUBCOMMITTEE

OF THE COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C. The subcommittee was reconvened at 9:55 a.m., in room 2203, Rayburn House Office Building, the Honorable John S. Monagan, presiding.

Present: Representatives John S. Monagan, Benjamin S. Rosenthal, John W. Wydfer, and John T. Myers.

Staff members present: Louis L. Freed, staff administrator; Herschel F. Clesner, counsel; and Thomas H. Saunders, minority staff. Mr. MONAGAN. I call the hearing to order. We are privileged to have with us this morning a member of the other body, former colleague of ours here in the House, who has gone through a pretty rough course to get here to testify this morning. Senator Lee Metcalf. Senator Metcalf is the junior Senator from Montana.

We are happy to have you with us this morning, Senator, to testify concerning governmental advisory committees. We are pleased to have you make any statement you may care to make.

STATEMENT OF HON. LEE METCALF, A U.S. SENATOR FROM THE STATE OF MONTANA; ACCOMPANIED BY VIC REINEMER, EXECUTIVE SECRETARY

Senator METCALF. I have a brief prepared statement. It will save time if I read it rather than summarize. Summaries, I find, are often longer than the statement.

Mr. Chairman, I am delighted to come back to the House. I found that one of the longest distances in town is the distance between the House and the Senate. You plan to come over and visit old colleagues and unless you have some special meeting such as this you never get an opportunity.

We have to see each other in Europe or some place such as that. But I am very pleased to have this opportunity to testify before your committee regarding the operation of governmental advisory commit

tees.

I would like to share with you and the members of your committee my experience with some of the invisible but influential committees which are associated within the Advisory Council on Federal Reports. These committees advise the Budget Bureau in fields such as transportation, communications, utilities, trade, banking, and equal employment. The committees have absolutely no basis in law. Yet they call

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themselves the "official business consultant to the Federal Bureau of the Budget." These committees have existed for 28 years. They are comprised of representatives of industry, in most cases very big industry. They meet quietly with officials of the Budget Bureau and the Federal agencies with which they do business. They throw parties and picnics for their Budget Bureau friends. And they see to it that Federal regulations which they do not like are modified, delayed, or killed. Until this year, very few people were even aware of the existence of these business advisory committees, even though they came into being during World War II. I became aware of these committees about 5 years ago, when I was attempting to delineate the pattern of utility donations each year, to a number of rightwing organizations. I suggested to the Federal Power Commission that it simply ask the major utilities whether they gave money to specified organizations. The FPC said it could not do that, unless the Budget Bureau approved. The Budget Bureau would in turn ask the advice of its utility advisory committee. Its members were presidents and vice presidents of the very same companies which were financing these rightwing organizations, so they would see to it that no official requests, such as I proposed, were ever made.

Meanwhile, you, Mr. Chairman, and other members of the House Natural Resources and Power Subcommittee were finding out how the Budget Bureau and its advisory committees were adding to today's environmental problems. House Report 1579 of the 90th Congress, second session, starkly describes the success of industry groups, working through the Budget Bureau, in staving off the national inventory of industrial wastes. That House document, printed in 1968, describes how since 1964 "the industry representatives (on the Budget Bureau's committee) expressed strong opposition to the questionnaire" designed to elicit the information upon which enforcement of antipollution laws could effectively be based. As the House document reported:

The Budget Bureau then refused to approve the questionnaire form, thus effectively quashing the proposed inventory of industrial waste discharges. The House Subcommittee on Natural Resources and Power continued to try to get this inventory underway. In 1965, following indications of industry's willingness to cooperate, the subcommittee again urged that industrial wastes be inventoried. In 1967, the Interior Department, which had new responsibilities for pollution abatement, asked the Budget Bureau to approve an inventory questionnaire. The Budget Bureau, responsive to its industry advisers, again balked.

The Bureau, in an amazing letter sent to subcommittee Chairman Jones on August 4, 1967, said that it wanted to delay getting information until it had more information. The Budget Bureau-industry group was stalling, waiting for economic incentives to protect the environment. The Budget Bureau met again in 1968, with a panel of industry representatives, and again stymied the questionnaire.

Mr. Chairman, I want to advise your subcommittee on the status, as of yesterday, of the 7-year effort to obtain basic information from industry on pollution. The Budget Bureau advised my office yesterday that the new Administrator of the Water Pollution Control Administration had asked to look at the proposed questionnaire. He decided this was not a proper Federal concern. He wants to see if the States can provide the information.

That attitude by a Federal administration starkly illustrates the fact that this administration does not believe in law enforcement against corporations. It is of a piece with the failure to enforce laws and regulations violated by oil companies which pollute our coastal waters. It is of a piece with the tragic Presidential veto, a decade ago, which said that pollution is a uniquely local blight.

And the Budget Bureau-I was advised yesterday-has withdrawn consideration of the proposed inventory.

If ever there was a time for the legislative branch to assert itself, the time is now.

Yet those industry groups try to maintain the fiction that they do not operate in the policy area.

I would add, Mr. Chairman, as an aside, that these same industries now spend many thousands of dollars advertising how they protect the environment and their customers.

Through use of the industry advisory committees, the teeth are removed from the laws we pass. The public and the regulators are denied basic information to which they are entitled, answers to such fundamental questions as: Who owns the companies? Who works for them? Where does their money go? The answers to such questions are fundamental to meaningful regulation and also to application of antitrust

statutes.

"Nader's Raiders" reported this week to the Senate Subcommittee on Surface Transportation that the Interstate Commerce Commission does not have "a single consumer or consumer representative on its numerous advisory groups. I found the same to be true regarding the Budget Bureau advisory committees. Indeed, the utility advisory committees there are three of them-are so selective that they do not include a single representative of a municipally-owned or cooperativelyowned power system.

For several years I periodically suggested to the Budget Bureau that it broaden the membership of its advisory committees. The Bureau declined to do so. So last year I introduced legislation requiring consumer, small business, and labor representation on Budget Bureau advisory committees.

Introduction of this legislation-S. 3067-perturbed the Budget Bureau and its advisory committees, to the extent that the Bureau now suggests, in its report on the bill, that it will find somebody in Mrs. Knauer's office, and maybe some small businessmen, to sit in on those meetings.

They don't say a word about letting our former colleague, Andy Biemiller, into the inner sanctum.

The few public representatives who have had the temerity to sit in on meetings since my bill was introduced have been treated like second class citizens.

Obviously, legislation is needed. I am not sure that my bill is the remedy. It would be better to abolish the advisory committees altogether than to simply adorn them with windowdressing. Congressman Moss has the companion bill over here before your parent committeeH.R. 15101. I am sure that the record you are developing in this hearing will be helpful in deciding what legislation should finally be reported.