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REAUTHORIZATION OF THE ADMINISTRATIVE

CONFERENCE OF THE UNITED STATES

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MAY 20 AND JUNE 24, 2004

Serial No. 109

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

CHRIS CANNON, Utah Chairman

HOWARD COBLE, North Carolina 

JEFF FLAKE, Arizona 

JOHN R. CARTER, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE CHABOT, Ohio 

TOM FEENEY, Florida 

MELVIN L. WATT, North Carolina 

JERROLD NADLER, New York 

TAMMY BALDWIN, Wisconsin 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

DIANE K. TAYLOR, Counsel 

JAMES DALEY, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

C O N T E N T S 

HEARING DATES 

Page 

May 20, 2004

REAUTHORIZATION OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED

STATES ............................................................................................................... 1

June 24, 2004

WHY IS THERE A NEED TO REAUTHORIZE THE CONFERENCE? ........................... 29

OPENING STATEMENT 

MAY 20, 2004

The Honorable Chris Cannon, a Representative in Congress From the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 1

The Honorable Melvin L. Watt, a Representative in Congress From the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 4

The Honorable Howard Coble, a Representative in Congress From the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 8

The Honorable John Conyers, Jr., a Representative in Congress From the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 8

JUNE 24, 2004

The Honorable Chris Cannon, a Representative in Congress From the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 29

The Honorable Melvin L. Watt, a Representative in Congress From the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 31

The Honorable Howard Coble, a Representative in Congress From the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 38

The Honorable Tom Feeney, a Representative in Congress From the State 

of Florida ............................................................................................................... 38

WITNESSES 

MAY 20, 2004

The Honorable Antonin Scalia, Associate Justice, Supreme Court of the 

United States 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 11

The Honorable Stephen G. Breyer, Associate Justice, Supreme Court of the 

United States 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 15

Page

IV

JUNE 24, 2004

C. Boyden Gray, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, on 

behalf of the American Bar Association 

Oral Testimony ..................................................................................................... 59

Prepared Statement ............................................................................................. 60

Professor Gary J. Edles, Fellow in Administrative Law, American University 

Washington College of Law, and General Counsel, Administrative Conference of the United States (1987–1995) 

Oral Testimony ..................................................................................................... 63

Prepared Statement ............................................................................................. 64

Professor Sallyanne Payton, William W. Cook Professor of Law, the University of Michigan Law School, on behalf of the Executive Organization and 

Management Standing Panel of the National Academy of Public Administration 

Oral Testimony ..................................................................................................... 71

Prepared Statement ............................................................................................. 72

Professor Philip J. Harter, Earl F. Nelson Professor of Law, Center for the 

Study of Dispute Resolution, University of Missouri Law School-Columbia 

School of Law 

Oral Testimony ..................................................................................................... 75

Prepared Statement ............................................................................................. 77

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

MAY 20, 2004

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 3

Letter from William Funk, Chair, the American Bar Association Section of 

Administrative Law and Regulatory Practices .................................................. 5

JUNE 24, 2004

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 30

Letter from Professor Richard Chernick, Esq., Chairman, American Bar Association Section of Dispute Resolution ................................................................. 33

Letter from Professor Paul R. Verkuil, Benjamin N. Cardozo School of Law, 

Yeshiva University ............................................................................................... 36

Prepared Statement of Professor Sally Katzen, The University of Michigan 

Law School ............................................................................................................ 38

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

JUNE 24, 2004

Response to post-hearing questions from C. Boyden Gray .................................. 91

Response to post-hearing questions from Professor Gary J. Edles ...................... 97

Response to post-hearing questions from Professor Sallyanne Payton ............... 114

Response to post-hearing questions from Professor Philip J. Harter .................. 121

Letter from Michael Herz, Professor of Law and Co-Director, and David 

Rudenstine, Dean and Co-Director, Floersheimer Center of the Benjamin 

N. Cardozo School of Law, Yeshiva University ................................................. 125

(1)

REAUTHORIZATION OF THE ADMINISTRATIVE 

CONFERENCE OF THE UNITED STATES 

THURSDAY, MAY 20, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:06 p.m., in Room 

2141, Rayburn House Office Building, Hon. Chris Cannon (Chair of 

the Subcommittee) presiding. 

Mr. CANNON. The Subcommittee will please come to order. I expect we will have several other Members who told us they would 

like to join us will join us soon. 

It is indeed an honor and a pleasure to welcome to our Subcommittee today two of our Nation’s most esteemed jurists. I am 

informed that it’s fairly rare to have a Justice from the Supreme 

Court, let alone two Justices, testify before Congress, particularly 

with respect to matters not pertinent to the judiciary’s funding or 

operations. According to the Congressional Research Service, the 

last time a Supreme Court Justice testified before the House Judiciary Committee was in May 1971, when Associate Justice Potter 

Stewart discussed legislation concerning the Federal Judicial Center and the Administrative Office of the United States. The presence of Justices Breyer and Scalia, I believe, underscores the significance of today’s hearing, which focuses on the value of reauthorizing the Administrative Conference of the United States. 

For those of you who are not familiar with the work and accomplishments of the Conference, let me briefly explain. 

Over the course of its 28-year existence, the Conference issued 

more than 200 recommendations, some of which were Governmentwide and others were agency-specific. It issued a series of recommendations eliminating a variety of technical impediments to judicial review of agency actions and encouraging less costly consensual alternatives to litigation. 

The fruits of these efforts included enactment of the Administrative Dispute Resolution Act of 1990, which established a framework 

for the use of ADR. In addition to this legislation, ACUS served as 

the key implementing agency for the Negotiated Rulemaking Act, 

the Equal Access to Justice Act, the Congressional Accountability 

Act, and the Magnusson-Moss Warranty Federal Trade Commission Improvement Act. 

The Conference also made recommendations regarding implementation of the Congressional Accountability Act and played a 

2

key role in the Clinton administration’s National Performance Review with respect to improving the regulatory systems. Further, 

ACUS served as a resource for Members of Congress, congressional 

Committees, the Internal Revenue Service, Department of Transportation, and the Federal Trade Commission. 

With respect to specific agencies, the Conference, for example, 

during the 1970’s undertook an exhaustive study of the procedures 

of a single agency, the Internal Revenue Service, which resulted in 

72 proposals concerning the confidentiality of taxpayer information, 

IRS settlement procedures, and the handling of citizen complaints, 

among other matters. The IRS ultimately adopted 58 of these recommendations. 

Some may ask: Why should we reconsider—or consider reauthorizing the agency at this time or the Conference at this time? We’ve 

gotten along without the Conference over the last 8 years—I might 

say, not very well. How can we justify re-establishing the agency 

at the attendant expenditures, especially in a fiscal belt-tightening 

environment? The answer, at least to me, is obvious. Just this 

week, Congress passed the Paperwork and Regulatory Improvements Act by an overwhelming bipartisan vote of 373–54. This legislation is intended to assist Congress in its review of final agency 

rules under the Congressional Review Act and to improve the quality and quantity of information provided in the annual regulatory 

accounting statement prepared by the Office of Management and 

Budget. 

While a good bill, problems with the current administrative law 

environment are much greater than either the Congress or OMB 

by itself, or even jointly, can address. According to the Congressional Research Service, there are growing patterns of evasion 

among agencies with respect to notice and comment requirements. 

An increasing number of regulations are being successfully challenged in courts. An informal study by CRS indicates that 51 percent of these rules were struck down by the courts. Needless litigation hurts everyone. It slows the rulemaking process, encourages 

agencies to try to circumvent public comment requirements, and 

costs taxpayers millions of dollars, a lot more than the budget that 

we’re proposing here. 

Another serious area of concern is the need to have a coherent 

approach among the agencies with respect to emerging issues and 

technologies. These areas include issues dealing with privacy, national security, public participation in the Internet, and the Freedom of Information Act. There are also concerns about the need to 

have peer review and to have regulations based on sound science. 

Our Nation’s people and business communities depend upon Federal agencies to promote scientific research and to develop sciencebased policies that protect the Nation’s health and welfare. Integral 

to the Federal regulatory process is the need to assess the safety, 

public health, and environmental impact of proposed regulations. 

Regulations lacking sound scientific support can present serious 

safety and health consequences, as well as cause private industry 

to incur unnecessary and burdensome expenses to comply with 

such regulations. Restoring the Conference in some form, from my 

perspective, would provide a cost-effective, highly valuable solution 

to these problems. It is my hope that today’s hearing will be the 

3

first step toward establishing a strong evidentiary base to support 

the reauthorization of the Conference. 

[The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

The Subcommittee will please come to order. 

It is indeed an honor as well as a pleasure to welcome to our Subcommittee two 

of our nation’s most esteemed jurists. I am informed that it is a fairly rare event 

to have a Justice of the Supreme Court—let alone two Justices—testify before Congress, particularly with respect to matters not directly pertinent to the Judiciary’s 

funding or operations. According to the Congressional Research Service, the last 

time that a Supreme Court Justice testified before the House Judiciary Committee 

was in May of 1971, when Associate Justice Potter Stewart discussed legislation 

concerning the Federal Judicial Center and the Administrative Office of the United 

States. 

The presence of Justices Breyer and Scalia—I believe—underscores the significance of today’s hearing, which focuses on the value of reauthorizing the Administrative Conference of the United States. For those of you who are not familiar with 

the work and accomplishments of the Conference, let me briefly explain. 

Over the course of its 28-year existence, the Conference issued more than 200 recommendations—some of which were government-wide and others that were agencyspecific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts include the enactment of 

the Administrative Dispute Resolution Act in 1990, which established a framework 

for the use of ADR. 

In addition to this legislation, ACUS served as the key implementing agency for 

the Negotiated Rulemaking Act, the Equal Access to Justice Act, the Congressional 

Accountability Act, and the Magnusson-Moss Warranty-Federal Trade Commission 

Improvement Act. The Conference also made recommendations regarding implementation of the Congressional Accountability Act and played a key role in the Clinton 

Administration’s National Performance Review with respect to improving regulatory 

systems. Further, ACUS served as a resource for Members of Congress, Congressional Committees, the Internal Revenue Service, Department of Transportation, 

and the Federal Trade Commission. 

With respect to specific agencies, the Conference, for example, during the 1970s 

undertook an exhaustive study of the procedures of a single agency—the Internal 

Revenue Service—which resulted in 72 proposals concerning the confidentiality of 

taxpayer information, IRS settlement procedures, and the handling of citizen complaints, among other matters. The IRS ultimately adopted 58 of these recommendations. 

Some may ask, ‘‘Why should we consider reauthorizing the Conference at this 

time?’’ We’ve gotten along without the Conference over the last eight years. How can 

we justify re-establishing an agency with the attendant expenditures especially in 

this belt-tightening environment?’’

The answer—at least to me—is obvious. Just this week, Congress passed the Paperwork and Regulatory Improvements Act by an overwhelming bipartisan vote of 

373 to 54. This legislation is intended to assist Congress in its review of final agency 

rules under the Congressional Review Act and to improve the quality and quantity 

of information provided in the annual regulatory accounting statement prepared by 

the Office of Management and Budget. While a good bill, problems with the current 

administrative law environment are much greater than either the Congress or OMB 

can singularly or even jointly address. 

According to the Congressional Research Service, there are growing patterns of 

evasion among agencies with respect to notice and comment requirements. An increasing number of regulations are being successfully challenged in the courts. An 

informal study by CRS indicates that 51% of these rules were struck down by the 

courts. Needless litigation hurts everyone—it slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars. 

Another serious area of concern is the need to have a coherent approach among 

the agencies with respect to emerging issues and technologies. These areas include 

issues dealing with privacy, national security, public participation and the Internet, 

and the Freedom of Information Act. There are also concerns about the need to have 

4

peer review and to have regulations based on sound science. Our nation’s people and 

business communities depend upon federal agencies to promote scientific research 

and to develop science-based policies that protect the nation’s health and welfare. 

Integral to the federal regulatory process is the need to assess the safety, public 

health, and environmental impact of proposed regulations. Regulations lacking 

sound scientific support can present serious safety and health consequences as well 

as cause private industry to incur unnecessary and burdensome expenses to comply 

with such regulations. 

Restoring the Conference in some form—from my perspective—would provide a 

cost-effective, yet highly valuable solution to these problems. It is my hope that today’s hearing will the first step toward establishing a strong evidentiary basis of 

support for reauthorizing the Conference.

Mr. CANNON. I will now turn to my colleague, Mr. Watt, the distinguished Ranking Member of the Subcommittee, and ask him if 

he has opening remarks. 

Mr. WATT. Thank you, Mr. Chairman, and I will take a brief moment here just to thank the Chairman for convening today’s hearing and to welcome our distinguished guests, Justices Breyer and 

Scalia. 

As I indicated to the two Justices, this must be my Supreme 

Court day because we—a judicial caucus has now been started in 

the House, and its first visitor just before this meeting was convened was Justice Rehnquist, Chief Justice Rehnquist. So I think 

I’ve had more exposure, direct, personal exposure to Justices of the 

Supreme Court in one day than I have in my entire life, although 

I guess most people know I’ve had quite a bit of exposure, not personal but in other respects, with the Justices. So I’m delighted to 

be here and honored that you would share your insights on the 

topic of this hearing. 

The purpose of the hearing is to determine whether the state of 

administrative law and procedure warrant the reauthorization of 

the Administrative Conference of the United States. And as we 

know, the Administrative Conference was initially established in 

1964 as a permanent body to serve as the Federal Government’s 

in-house adviser on and coordinator of administrative procedural 

reform. It enjoyed bipartisan support for over 25 years and advised 

all three branches of Government before being terminated in 1996. 

Through the years, the Conference was a valuable resource providing information on the efficiency, adequacy, and fairness of the 

administrative procedures used by administrative agencies in carrying out their programs. This was a continuing responsibility and 

a continuing need, a need that, certainly in my opinion, has not 

ceased. So the topic before us today is one that has truly been nonpartisan, bipartisan, and I think we are blessed to have these two 

distinguished witnesses who—both of whom have personal experience with the Conference and its workings. And I understand also 

that the Chairman is expecting to have additional hearings to further information the Subcommittee and the Judiciary Committee 

about the need for the Administrative Conference, and I look forward to those hearings. 

Again, I welcome Justice Scalia and Justice Breyer, and I bring 

you the regards of your Chief Justice from the prior meeting. 

Thank you for being here. 

I yield back. 

Mr. CANNON. The gentleman’s time has expired. 

5

We would like to thank the Members who have joined us here: 

Mr. Coble from North Carolina; Mr. Chabot from Ohio; Mr. Watt, 

of course, from North Carolina, the Ranking Member; Mr. 

Delahunt from Massachusetts; Mr. Conyers from Michigan; and 

Mr. Scott from Virginia. We appreciate your attendance. 

We received a letter from the American Bar Association expressing its support for the reauthorization of the Administrative Conference, and without objection, we will submit that for inclusion in 

the record. So ordered. 

[The information referred to follows:]


ABA1.eps
6


ABA2.eps
7


ABA3.eps
8

Mr. CANNON. Without objection, all Members may place their 

statements in the record at this point. Is there any objection? Hearing none, so ordered. 

Mr. Coble has asked for a quick 1-minute opening statement. 

We’re pleased to yield to the gentleman. 

Mr. COBLE. Mr. Chairman, I will not exceed 1 minute. I just 

want to reiterate what Mr. Watt said. I was with Mr. Watt, Mr. 

Scott, and other colleagues with the Chief Justice at a meeting 

today. We very much enjoyed having him here, and we very much 

appreciate you two Justices being with us. 

And, Mr. Chairman, I regret it but I’ve got another meeting 

going on now, so I may have to bolt before you conclude. But I 

thank you for having called this hearing. 

Mr. CANNON. I thank the gentleman, and we appreciate that 

many things are going on. 

Mr. Conyers, did you——

Mr. CONYERS. Mr. Chairman, could I be permitted a brief welcome to——

Mr. CANNON. Absolutely, Mr. Conyers. The Ranking Member of 

the full Committee, Mr. John Conyers from Michigan. 

Mr. CONYERS.—the two distinguished Justices. I’m so glad that 

you’re here. And I just wanted Justice Scalia to know that you look 

much more friendly in our setting than you do in your own. 

[Laughter.] 

Justice SCALIA. It’s the black robe. 

Mr. CONYERS. That might have something to do with it as well. 

I have also about several hundred questions which, regrettably, 

are not appropriate to this hearing. But you might want to extend 

to the Ranking senior Member of Judiciary an invitation to lunch 

or something else to examine my viewpoint and I yours. And we 

might reach a greater degree of comity than exists at the present 

moment. 

Thank you very much. 

Mr. CANNON. Thank you, Mr. Conyers. 

Mr. WATT. Could I ask the gentleman to yield just for a second? 

Mr. CONYERS. Of course. 

Mr. WATT. Just long enough to invite him to become a member 

of the newly established Judiciary Caucus, which had its first 

meeting today and met with Justice Rehnquist. So we’re trying to 

encourage comity and exchange across judiciary and——

Mr. CONYERS. Excellent idea. 

Mr. CANNON. Is this a bipartisan caucus? 

Mr. WATT. Yes, it is. It’s chaired, actually, by Representative 

Schiff and Representative Biggert, Republican and Democrat. 

Mr. CANNON. This is a caucus that goes beyond the Judiciary 

Committee itself? 

Mr. WATT. Yes. 

Mr. CANNON. Okay. Thank you. 

Without objection, the Chair will be authorized to declare recesses of the Subcommittee at any point. Hearing none, so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. So ordered. 

9

I also want to remind my colleagues of the obvious: Our witnesses are guided by Canon 3 of the Code of Conduct for United 

States Judges, which advises the judiciary to avoid making public 

comments with respect to the merits of pending or impending actions. We should endeavor to respect those constraints and limit 

our questions to the matter of our hearing. Adherence to this admonition will promote a greater dialogue, I think, at this point in 

the hearing and encourage the judiciary to participate in future 

hearings. 

Although I’m now pleased to introduce our witnesses for today, 

I’m sure that our colleagues are very well acquainted with their extensive accomplishments. 

Justice Antonin Scalia was nominated by President Ronald 

Reagan to the United States Court of Appeals for the District of 

Columbia Circuit and assumed the bench in 1982. Thereafter, he 

was nominated by President Reagan as Associate Justice of the 

United States Supreme Court and took the oath of office on September 26, 1986. 

Prior to his service in the judicial branch, Justice Scalia was general counsel for the Office of Telecommunications Policy in the Executive Office of the President from 1971 to 1972 and Assistant Attorney General in the Office of Legal Counsel at the Justice Department from 1974 to 1977. Between those two assignments, and 

of particular relevance to today’s hearing, Justice Scalia served as 

chairman of the Administrative Conference from 1972 to 1974. In 

addition, he chaired the American Bar Association Section of Administrative Law from 1982 to 1983. 

Our next witness is Justice Stephen Breyer. Justice Breyer 

began his illustrious legal career as a law clerk to Justice Arthur 

Goldberg during the Supreme Court’s 1964 term. He then served 

as special assistant to the head of the Justice Department’s Antitrust Division from 1965 to 1967. In 1973, Justice Breyer, having 

by this time worked for the judicial and executive branches of the 

Federal Government, now applied his talents to the legislative 

branch, where he worked as assistant Watergate special counsel in 

1973, special counsel to the Senate Judiciary Committee in 1975, 

and as the Committee’s chief counsel from 1979 to 1980. Thereafter, he was appointed Judge to the United States Court of Appeals for the First Circuit. President Clinton nominated him to the 

Supreme Court, and he took office in August 1994. Justice Breyer 

has authored numerous books and articles in the field of administrative law and regulation. 

I extend to each of you our warm regards and appreciation for 

your willingness to participate in today’s hearing. In light of the 

fact that your written statements will be included in the hearing 

record, I request that you limit your oral remarks to 5 minutes, but 

we are not going to be very hard on that time frame. We are mostly 

interested in your comments and ideas. Accordingly, please feel 

free to summarize and highlight the salient points of testimony. 

You’ll note that we have a lighting system. It starts with green, 

goes to yellow, it stays yellow for a minute, and then we’ll sort of 

ignore it if it turns red. 

On the other hand, because we have a number of Members, we’ll 

try and keep the questioning to about 5 minutes using the same 

10

system, and I’ll tend to tap the gavel when the 5 minutes runs, just 

so people are aware. I don’t think that we’ll have a problem with 

people going over time today. 

Justice Scalia, would you now proceed with your testimony? 

STATEMENT OF THE HONORABLE ANTONIN SCALIA, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES 

Justice SCALIA. I would be happy to. Mr. Chairman, Members of 

the Subcommittee, Congressman Conyers, I’m happy to be here 

today to provide information about the Administrative Conference. 

I obviously think it was a worthwhile organization and I guess 

demonstrated that belief by devoting 2 years of my life to it. 

I’ve described the organization of the Conference and some of its 

accomplishments, particularly during my tenure as Chairman, in 

my written testimony, and I will not go over that. 

I was Chairman from September 1972 until August 1974. Like 

the first two Chairmen, who were Professor Jerre Williams of the 

University of Texas Law School and Professor Roger Crampton of 

the University of Michigan Law School, and like my successor, Professor Robert Anthony of Cornell Law School, I was an academic 

and at that time on leave from the University of Virginia Law 

School. And, frankly, it was very much an academic job. I viewed 

it somewhat as returning from an online executive branch job, 

which I had had before then—I was general counsel of an agency— to a job that mainly dealt with examining procedures within the 

executive branch, trying to line up consultants (generally academic 

consultants) who would be competent to assist our committees in 

studying those procedures, and then assisting the full Assembly in 

preparing recommendations. 

I found the Conference to be a unique combination of talents 

from the academic world, from within the executive branch—because many of the members of the Conference were representatives 

of the agencies, usually general counsels—and, thirdly, from the 

private bar, especially lawyers particularly familiar with administrative law. I did not know another organization that so effectively 

combined the best talent from each of those areas. 

I think the Conference’s ability to be effective hinged in part on 

the fact that we were a Government agency, and when we went to 

do a study at an agency, we were not stonewalled. Very often, a 

member of that agency was on our Assembly, and so the agency 

would cooperate in the study that we did. I think it’s much harder 

to do that kind of a study from the outside. The agencies tended 

to look upon us as essentially other people from the executive 

branch trying to make things better. 

I think we were successful in improving many procedures 

throughout the Government. Very little of it made headlines. Most 

of the changes had to be made agency by agency. Nobody who was 

not involved in the particular work of that particular subsection of 

that particular agency would even know that any changes had been 

made. But, all in all, I think the Conference was successful in improving the efficiency and the economy of the executive branch in 

many areas. 

Mr. Chairman, at the Court we really don’t let counsel blather 

on without being interrupted by questions for very long, so I feel 

11

constrained to set the example myself. I will just refer you to my 

written testimony for the rest. I’m mainly here to answer your 

questions. 

[The prepared statement of Justice Scalia follows:]

PREPARED STATEMENT OF THE HONORABLE ANTONIN SCALIA

Mr. Chairman and Members of the Subcommittee: 

I am happy to accept your invitation to provide information concerning the Administrative Conference of the United States. I was the third Chairman of the Conference, and served in that capacity from September 1972 to August 1974. Like the 

first two Chairmen (Professor Jerre Williams of the University of Texas Law School, 

and Professor Roger Crampton of the University of Michigan Law School), and like 

my successor (Professor Robert Anthony of Cornell Law School), I was an academic—at that time on leave from the University of Virginia Law School. The Conference was then, and I believe continued to be, a unique combination of scholarship 

and practical know-how, of private-sector insights and career-government expertise. 

My testimony will generally pertain to the time period in which I served as Chairman, since I did not follow the Conference’s activities closely after moving on. 

At the outset, let me describe why the Conference was instituted and how it was 

organized. The Administrative Conference of the United States was established as 

a permanent independent federal agency by the Administrative Conference Act, 

signed by President Lyndon Johnson in 1964; and it was activated by the appointment of its first Chairman in January 1968. Its purpose was to identify the causes 

of inefficiency, delay, and unfairness in administrative proceedings affecting public 

rights, and to recommend improvements to the President, the agencies, the Congress, and the Courts. 

The Conference was composed of three parts: a Chairman, a Council, and an Assembly. The Chairman was appointed by the President, with the advice and consent 

of the Senate, for a term of five years. He was the Chief Executive of the Conference. He presided at plenary sessions of the Assembly and at Council meetings, 

and was the official spokesman for the Conference in relations with the President, 

the Congress, the Judiciary, the agencies, and the public. His most important responsibility, however, was to identify subjects appropriate for study by the Conference, and—if the relevant Committee of the Assembly was willing to pursue a 

particular subject—to line up an academic consultant qualified to assist in the research. It was also the Chairman’s responsibility to seek implementation of Conference recommendations—a task that required some diplomacy and charm, since 

needless to say the Conference had no enforcement powers over the agencies, much 

less over the President and Congress if the recommendations were directed to those 

quarters. The Chairman was served by a small permanent staff whose principal duties were to furnish administrative and research support to the Assembly of the 

Conference and its Committees, to follow and assist in the work of consultants, and 

to help the Chairman in securing implementation of recommendations. 

The Council of the Conference consisted of the Chairman and 10 other members 

who were appointed by the President for three-year terms, of whom not more than 

one-half could be drawn from Federal agencies. Its functions were similar to those 

of a corporate board of directors. It had the authority to call plenary sessions of the 

Conference and to fix their agenda, to recommend subjects for study, to receive and 

consider reports and recommendations before the Assembly considered them, and to 

exercise general budgetary and policy supervision. 

The Assembly of the Conference was composed of the entire membership, which 

by statute could not be less than 75 members nor more than 91. The Chairman and 

the other members of the Council accounted for 11 of this number; the remaining 

members fell into the following groups: First, the Act conferred membership upon 

the Chairman of each independent regulatory board or commission, or an individual 

designated by the board or commission. Second, the Act granted membership to the 

head of each Executive Department or other administrative agency (or his designee) 

named by the President. The final group consisted of the public members, appointed 

by the Chairman with the approval of the Council for two-year terms. These members, who had to comprise not less than one-third nor more than two-fifths of the 

total membership, were selected in such a manner as to provide broad representation of the views of private citizens of diverse experience. They were chosen from 

among members of the practicing bar, prominent scholars in the field of administrative law, and others specially qualified by knowledge and experience to deal with 

matters of federal administrative procedure. 

12

The Assembly, which had ultimate authority over all activities of the Conference, 

operated much like a legislative body. It adopted By-laws establishing nine standing 

committees: (1) Agency Organization and Personnel, (2) Claims Adjudications, (3) 

Compliance and Enforcement Proceedings, (4) Grant and Benefit Programs, (5) Informal Action, (6) Judicial Review, (7) Licenses and Authorizations, (8) Ratemaking 

and Economic Regulation, and (9) Rulemaking and Public Information. These committees were the real work-horses of the Conference. They met periodically to direct 

and supervise research by academic consultants and by the Conference’s professional staff. On the basis of that research they framed proposals for consideration 

by the Assembly at its annual meeting. When a study or tentative recommendation 

had been prepared, it was circulated to the affected agencies for comment and reexamined by the committee in light of the replies. After final committee approval, a 

proposed recommendation would be transmitted to the Council and then to the Assembly for final action in plenary session. The Assembly could adopt the recommendation in the form proposed, amend it, refer it back to the committee, or reject it entirely. 

The purpose of the Conference was to apply the talents of its diverse group of 

agency officials, practitioners, and academic members to improving the efficiency 

and fairness of the thousands of varieties of federal agency procedures. In my judgment, it was an effective mechanism for achieving that goal—usually through voluntary acceptance of its recommendations by the affected agencies. Inefficiency and 

unfairness in agency procedures often exist simply by reason of bureaucratic inertia, 

and a well reasoned study and recommendation, prepared with the cooperation of 

the affected agency, can often produce desirable change. A few of the Conference’s 

projects have had major, government-wide impact—for example, its recommendation 

leading to Congress’s adoption of Public Law 94–574, which abolished the doctrine 

of sovereign immunity in suits seeking judicial review of agency action. For the most 

part, however, each of the Conference’s projects was narrowly focused upon a particular agency problem, and was unlikely to attract attention beyond the affected 

community. This should be regarded, not as a sign of ineffectiveness, but as evidence of solid hard work. Administrative procedure is not a one-size-fits-all operation; most procedural regimes are unique, and have to be fixed one-by-one. 

The Administrative Conference made several important strides in the area of implementation and saw some of its earlier recommendations bear fruit. Some examples that come to mind are the Justice Department’s almost verbatim adoption of 

the Conference’s guidelines for implementation of the Freedom of Information Act; 

the Civil Service Commission’s publication of proposals substantially applying the 

Conference’s recommendation concerning adverse actions against Federal employees; the Board of Parole’s indication of its readiness to adopt the Conference proposals concerning parole procedures; and the Department of Labor’s adoption of a 

field memorandum that substantially implemented the Conference’s proposals regarding labor certification of immigrant aliens. Agencies that engaged in publicity 

as a regulatory tool adopted procedures conforming to the Conference’s recommendations for protecting against unfair publicity that could harm a private 

party. The Conference’s recommendations regarding procedures for resolution of environmental issues in licensing proceedings were embodied in regulations adopted 

by five of the six affected agencies. 

Some of the Conference’s work also bore fruit at the legislative level. The Parole 

Commission and Reorganization Act of 1976, P.L. 94–233, implemented Recommendation 72–3’s call for a right to counsel in parole proceedings, and other procedural guarantees recommended by the Conference. The 1974 Freedom of Information Act Amendments, Pub. L. No. 93–502, adopted many of the Conference’s recommended improvements to FOIA. The Conference’s encouragement of granting 

agencies authority to impose civil money penalties has had a major, and I think 

beneficial, impact. Many separate statutes implemented the Conference’s recommendation regarding the appropriate standard of pre-enforcement judicial review 

of rules of general applicability. (That recommendation was also cited by court opinions that looked to it for guidance. See Ass’n of Data Processing Service Organizations, Inc. v. Board of Governors of Federal Reserve System, 745 F. 2d 677, 684 

(CADC 1984); Home Box Office, Inc. v. F. C. C., 567 F. 2d 9, 57 n.130 (CADC 1977).) 

Some recommendations were effectively implemented through a combination of congressional and agency action. For example, the Department of Treasury agreed to 

carry out most of the provisions of Recommendation 73–4, which called for increased 

access to customs representatives, greater disclosure, and written findings; and 1974 

legislation implemented the suggested improvements in coordination between Customs and other relevant agencies. Of course some recommendations were framed not 

in terms of what to do, but rather in terms of what to avoid—for example, the recVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 G:\WORK\COMM\052004\93774.000 HJUD1 PsN: 93774
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ommendation cautioning against Congress’s imposition of complex rulemaking procedures, which has been followed with few exceptions. 

The Conference made itself useful in ways beyond specific proposals for legislation, or executive or judicial action. As Chairman, I gave testimony before Congress 

on legislation pertaining to the Freedom of Information Act, the procedures of the 

U. S. Board of Parole, the establishment of a Consumer Protection Agency, possible 

amendments to the Federal Food, Drug, and Cosmetics Act and the Fair Packaging 

and Labeling Act, and the opening of the administrative process to the public. The 

Conference responded to numerous informal requests for advice from congressional 

committees and committee staffs on a wide variety of procedural matters. 

Agencies also sought the Conference’s informal advice and assistance, particularly 

in connection with their initiation of new programs or procedures. I regarded this 

sort of pre-implementation advice as a particularly beneficial activity, since it is obviously preferable to get things started on the right foot than to criticize the deficiencies of a program already in operation. During my first year alone, the staff and 

consultant resources of the Conference were called upon for advice with respect to 

several programs under development—for example, the Department of Transportation’s program to facilitate public participation in their rulemaking process, and 

the Justice Department’s congressionally mandated study into the feasibility of a 

special court for environmental matters. Especially noteworthy was the study which 

the Chairman’s Office prepared, at the request of the Office of Management and 

Budget, covering the procedural provisions of what was then the most significant 

piece of regulatory legislation that had been adopted in years, the Consumer Product Safety Act. This study was completed before the members of the new Consumer 

Product Safety Commission had yet been named, and was therefore a prime example of applying the Conference’s expertise at the point where it is most useful—before procedures have been adopted and institutional commitments made. The Conference also conducted seminars for agency attorneys, emphasizing those aspects of 

administrative procedure that had special relevance to the attorneys’ agency, but 

also refreshing the attorneys’ recollection of basic administrative law principles to 

which they had had no systematic exposure since law school. 

The Conference also conducted studies that, while not producing recommendations 

in and of themselves, were useful in enabling particular administrative functions to 

be understood and evaluated. An example of this is the study completed during the 

first year of my chairmanship by the Committee on Informal Action, systematically 

examining, for the first time, the agencies’ practices in providing advice to the public. Or the study by the Chairman’s Office concerning the various means by which 

agencies handle citizen complaints. 

One way of judging the worth of the Conference without becoming expert in the 

complex and unexciting details of administrative procedures with which it deals, is 

to examine the roster of men and women who have thought it worthwhile to devote 

their time and talent to the enterprise. Over the years, the academics who have 

served as consultants to or members of the Conference have been a virtual Who’s 

Who of leading scholars in the field of administrative law; and the practitioners who 

have served as members have been, by and large, prominent and widely respected 

lawyers in the various areas of administrative practice. 

I would not presume to provide the Subcommittee advice on the ultimate question 

of whether, in a time of budget constraints, the benefits provided by the Administrative Conference are within our Nation’s means. But I can say that in my view those 

benefits are substantial. The Conference was a proved and effective means of opening up the process of government to needed improvement.

Mr. CANNON. Thank you, Mr. Justice. That was very enlightening, raised points I hadn’t considered in the past. We have strict 

rules here because there’s a tendency that we blather on, and so 

we will adhere at least on our behalf. Thank you very much. 

Mr. Justice Breyer, would you mind presenting your testimony 

now? 

STATEMENT OF THE HONORABLE STEPHEN G. BREYER, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES 

Justice BREYER. In the Court, when the red light goes on, people 

stop. [Laughter.] 

Mr. CANNON. We’d like to inject some of that DNA around here, 

but we’ve long since given up. 

14

Justice BREYER. Mr. Chairman and Members of the Committee, 

I’m very pleased to be here with my colleague Justice Scalia. I 

think we’re completely in agreement. I think it’s a very good thing 

that you’re looking into the question of reauthorization. The reason 

I think it is good is I think Americans have problems that call for 

some Government solutions. They might need Social Security. They 

might need a permit in the environmental area. They might need— they might be veterans. There are just millions and millions of 

interactions between ordinary citizens and Government. 

If you tell the citizens that they just have only to do what the 

Government says or go to court, their life becomes impossible because courts are too expensive and they take too long. So we have 

administrative processes which are supposed to be simple and 

they’re supposed to be less expensive. That’s where the Administrative Conference comes in, because it’s hard to create those processes—very hard. And it’s done at a level that’s highly technical. 

You could say, ‘‘What person actually cares about separation of 

functions rules for rulemaking?’’ All you have to do is mention that 

phrase, and they’re already asleep. But, in fact, whether you have 

one set of rules or another set of rules matters. And if you were 

to say, ‘‘What’s the right set of rules?’’ I couldn’t tell you in theory. 

In theory, there is no right set. You have to have people who know 

about it. And I have been an academic for many years, and I will 

absolutely swear that they don’t know. 

We are very good in the academy at getting theories, but we’re 

not necessarily so good in finding out how they operate in practice. 

This is where the Administrative Conference came in. 

My first book I ever wrote, a book that I think was extremely 

popular—I think it sold 23 copies. But it was aimed at certain 

questions: How do people actually set rates at the Federal Power 

Commission? Do you remember the Federal Power Commission? 

Well, that was back in the 1960’s, and that was FERC before 

FERC was born. 

So Paul McAvoy and I actually went to the Federal Power Commission. It was impossible in Washington to find anyone who knew 

where it was. We found it. We found the administrators who actually set the rates. It was a woman named Georgia Ledaukis. I remember her. I said, ‘‘How do you set a rate?’’ And she explained 

it. No one had ever asked her that question. But it was that system 

that only she, I think, at the Federal Power Commission knew 

about. and that was really the system that they, in fact, used. 

So, I think that was a good idea. And what the Administrative 

Conference did was formalize that kind of thing. There were four 

kinds of members: there were actual commissioners. I can remember when—it was Dean Burch—do you remember Dean Burch who 

was Chairman of the Federal Communications Commission? And 

he would tell us about the problem of ex parte communications in 

practice. Would you like to know what he said? It’s sort of interesting. He said—I can remember this talk. He said, ‘‘You know, I 

was from Arizona. I was appointed Chairman of the Federal Communications Commission. My neighbors congratulated me. And 

then I came to Washington. I thought I was a pretty important person. But I discovered nobody was the slightest bit interested. Oh, 

no,’’ he said, ‘‘there was one group of people, one group of very poVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 G:\WORK\COMM\052004\93774.000 HJUD1 PsN: 93774
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lite, very charming, really hospitable people who seemed to be interested in everything I said. They were lawyers, and they worked 

for the communications company.’’ He said, ‘‘No, that was in really 

practical form the problem of ex parte communications.’’

Well, I’m just giving you examples. But I’m saying when you put 

the academics together with the agency staffs, the agency commissioners, the heads of the agency, and then some lawyers who are 

actually practical people outside the agency who know what it is 

to deal with them every day. And they discuss things at a technical 

level, sometimes things can change—a little bit for the better. 

What kinds of rules should we have for a proceeding of informal 

rulemaking? How formal should informal rulemaking be? Should it 

be very formal, like formal rulemaking? Hardly formal? Somewhere 

in the middle? The same for every agency? Have exceptions, as we 

do sometimes for some of these procedures? 

The Conference would try to address that kind of question. Someone would write a report. The report would be criticized. It would 

be discussed. Something would emerge, and then recommendations 

would flow, either to the agencies themselves or to Congress. When 

they passed Congress—and sometimes they did—it was not because people thought there was a lot of political force behind it one 

way or the other. It was because they thought it was simply good 

Government. That’s what the commission—that’s what the Conference did. It is a matter of good Government. Its recommendations were not perfect, but I think they helped. And it’s a great 

forum for bringing people together and discussing what will really 

happen, not what the politics or the general policy is about procedure and at a technical level. 

So I’m very glad you’ve looked into this. I’m glad you’re doing it. 

I very much hope you reauthorize the Administrative Conference. 

[The prepared statement of Justice Breyer follows:]

PREPARED STATEMENT OF THE HONORABLE STEPHEN BREYER

Mr. Chairman and Members of the Subcommittee. Thank you for the invitation 

to comment upon the Administrative Conference of the United States. I participated 

in its activities from 1981 to 1994 as a ‘‘liaison’’ to the Administrative Conference 

from the Judicial Conference. I believe that the Conference was a unique organization, carrying out work that is important and beneficial to the average American, 

at low cost. 

During that time, the Administrative Conference primarily examined government 

agency procedures and practices, searching for ways to help agencies function more 

fairly and more efficiently. It normally focused upon achieving ‘‘semi-technical’’ reform, that is to say, changes in practices that are general (involving more than a 

handful of cases and, often, more than one agency) but which are not so controversial or politically significant as likely to provoke a general debate, say, in Congress. 

Thus, it would study, and adopt recommendations concerning better rule-making 

procedures, or ways to avoid legal technicalities, controversies, and delays through 

agency use of negotiation, or ways of making judicial review of agency action less 

technical and easier for ordinary citizens to obtain. While these subjects themselves, 

and the recommendations about them, often sound technical, in practice they can 

make it easier for citizens to understand what government agencies are doing to 

prevent arbitrary government actions that could cause harm. 

The Administrative Conference was unique in that it developed its recommendations by bringing together at least four important groups of people: top-level agency 

administrators; professional agency staff; private (including ‘‘public interest’’) practitioners; and academicians. The Conference would typically commission a study by 

an academician say, a law professor, who often has the time to conduct the study 

thoughtfully, but may lack first-hand practical experience. The professor would 

spend time with agency staff, which often has otherwise unavailable facts and expeVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 G:\WORK\COMM\052004\93774.000 HJUD1 PsN: 93774
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rience, but may lack the time for general reflections and comparisons with other 

agencies. The professor’s draft would be reviewed and discussed by private practitioners, who bring to it a critically important practical perspective, and by top-level 

administrators such as agency heads, who can make inter-agency comparisons and 

may add special public perspectives. The upshot was likely to be a work-product 

that draws upon many different points of view, that is practically helpful and that 

commands general acceptance. 

In seeking to answer the question, ‘‘Who will control the regulators?’’ most governments have found it necessary to develop institutions that continuously review, and 

recommend changes in, technical agency practices. In some countries, ombudsmen, 

in dealing with citizen complaints, will also recommend changes in practices and 

procedures. Sometimes, as in France and Canada, expert tribunals will review decisions of other agencies and help them improve their procedures. Sometimes, as in 

Australia and the United Kingdom, special councils will advise ministries about 

needed procedural reforms. Our own Nation developed this rather special approach 

(drawing together scholars, practitioners, and agency officials) to bringing about reform of a sort that is more general than the investigation of individual complaints 

yet less dramatic than that normally needed to invoke Congressional processes. 

Given the Conference’s rather low cost (a small central staff, commissioning academic papers, endless amounts of volunteered private time, and two general meetings a year), it is indeed a pity that by abolishing this Conference, we have weakened our federal government’s ability to respond effectively, in this general way, to 

the problems of its citizens. 

I have not found other institutions readily available to perform this same task. 

Individual agencies, while trying to reform themselves, sometimes lack the ability 

to make cross-agency comparisons. The American Bar Association’s Administrative 

Law Section, while a fine institution, cannot call upon the time and resources of 

agency staff members and agency heads as readily as could the Administrative Conference. Congressional staffs cannot as easily conduct the technical research necessary to develop many of the Conference’s more technical proposals. The Office of 

Management and Budget does not normally concern itself with general procedural 

proposals. 

All of this is to explain why I believe the Administrative Conference performed 

a necessary function, which, in light of the cost, should have been maintained. I recognize that the Conference was not the most well known of government agencies; 

indeed, it was widely known only within a fairly small (administrative practice oriented) community. But, that, in my view, simply reflects the fact that it did its job, 

developing consensus about change in fairly technical areas. That is a job that the 

public, whether or not it knows the name ‘‘Administrative Conference,’’ needs to 

have done. And, for the reasons I have given, I believe that the Administrative Conference was well suited to do it. 

I hope these views will help you in your evaluation of the need to re-establish the 

Conference. I highly recommend that Congress do so.

Mr. CANNON. Thank you very much, Mr. Justice Breyer. 

Mr. Coble, would you like 5 minutes? 

Mr. COBLE. Thank you, Mr. Chairman. And, again, I apologize 

for my imminent departure, but it’s good to have both of you with 

us. 

Justice Scalia, should ACUS in your opinion be established as a 

part of another agency such as Department of Justice or GSA, for 

example, A? And should it be privatized, B? 

Justice SCALIA. A is easy. I don’t think it would be effective if it 

were a part of any other agency. It was set up originally as an 

independent agency, and I think it has to be that in order to have 

the confidence of the other agencies with which it’s dealing. As you 

know, there are some interagency jealousies and reservations 

which I think would make its studies more difficult if it were a 

subunit of some other department. Besides which, I think being accountable to a Secretary of some Department or to the Attorney 

General would eliminate its independence, which is its whole 

value. It’s not supposed to reflect the view of the current Administration or of the current Justice Department. It’s supposed to repVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 G:\WORK\COMM\052004\93774.000 HJUD1 PsN: 93774
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resent the intelligent, informed view of those who are expert within 

the academic community, the practicing bar, and the Government. 

So if you want to have that, I think you have to make it an independent agency. I think it would hurt it to put it under something 

else. 

Now, the second question, should it be privatized? I’m not sure 

what you mean by that. I think it has to be within the Government 

because, as I indicated in my initial comments, you have an entree 

to the agencies. No agency likes to be studied. Anybody who says, 

you know, ‘‘We welcome a study,’’ they’re kidding you. Everybody 

would like people to go away and leave me alone. 

But if you have an agency that has the respect of other agencies 

and in which a representative from that agency itself is on the 

Conference, which was usually the case, your chances of being able 

to do a thorough study with the cooperation of the agency are vastly increased. That could not be done by a private operation. 

Mr. COBLE. Thank you, sir. 

Justice Breyer, in this town much is made over, oh, it must bipartisan. Well, I’m an advocate of bipartisanship as well, but by 

the very nature of this city, it’s the capital city of a Republic of 50 

States, and some issues by their very nature and make-up are 

going to be partisan. Justice Scalia I think answered this, but let 

me put it to you, if I may. 

How important is it to preserve the bipartisan, nonpolitical nature of ACUS? 

Justice BREYER. It’s fairly important. I can’t recall in the time I 

was there—I don’t want to say none, but I can’t recall any significant number of issues coming up where partisanship made much 

of a difference. You know, there could have been some, but it’s at 

a level where what is the partisan view of separation of functions 

in rulemaking? You know, for most—that’s not true 100 percent, 

but most of it, it doesn’t take place in the discussion at a partisan 

level. 

Mr. COBLE. Thank you, sir. 

Mr. Chairman, I want you to take judicial notice that I beat the 

red light, and I yield back my time. And thank you, again, gentlemen, for being with us. 

Mr. CANNON. I thank the gentleman. 

Mr. Watt, would you like 5 minutes? 

Mr. WATT. Thank you, Mr. Chairman. 

Justices, reading from the briefing memo that the Committee 

Members got, just to establish a foundation for a question that I 

want to follow up with, the Administrative Conference was established as a permanent, independent agency in 1964 and became 

operational 3 years later. The Conference was created to develop 

recommendations for improving procedures by which Federal agencies administer regulatory, benefit, and other Government programs. It served as a private-public think tank that conducted 

basic research on how to improve the regulatory and legal process. 

After failing to be appropriated funds for fiscal year 1996, ACUS 

ceased operations as of October 31, 1995, and the statutory provisions establishing ACUS have not been repealed. 

Justice Breyer gave us a great snapshot of some of the things 

that the Conference did to formalize and clarify procedures that 

18

were absolutely necessary. I sense that we are probably continuing 

to benefit from the work that the Conference did over the years of 

its existence in establishing knowable and uniform procedures. 

I’m wondering if either of you may have examples of some of the 

problems that have been created since 1995 when the Conference 

went out of existence that might have been avoided had the Conference been in place. 

Justice BREYER. We won’t know. I remember one of the things 

they were working on earlier when I was—it was before I was appointed to the Supreme Court. I was on the court of appeals. A 

question that’s always been a tough one, but very interesting, is 

the problem of negotiated rulemaking. Rules take us sometimes a 

very long time to write, and the problem they deal with almost 

goes away by the time they get them written and through the 

courts. And there was an idea that we could produce a negotiated 

process, and that’s not an easy thing to do because sometimes there 

are people left out of the table. 

They’ve done studies on that, and maybe that’s made a lot of 

progress without them. Maybe it hasn’t. I haven’t heard too much 

about it. 

Mr. WATT. That was still a work in progress at the end of 

the——

Justice BREYER. I think a continuous set of works in progress. 

But the short answer is I don’t know. 

Justice SCALIA. That’s my answer, too, Congressman. And it’s not 

easy to know. The biggest part of my job when I was Chairman 

was precisely identifying problems to study. Most of them are 

under the surface. They don’t leap out at you. If they leapt out at 

you, there would be legislation covering the problem. That’s usually 

not the case. It takes some work to discover what the real problems 

are and to discover how to solve them. 

Anyway, you know, I have been out of that business for a while 

now. I’m now in the business of creating problems rather than solving them. [Laughter.] 

Justice BREYER. That’s what I was thinking. I was thinking that 

since we’ve both been on the Court, my guess is that we could get 

a pretty good agenda for them. 

Mr. WATT. I would sense that maybe the people who would be 

most knowledgeable about the problems that may be surfacing as 

a result of not having the Conference in place would be ordinary 

citizens who are trying to work their way through a process that 

there’s really—or improve a process that there’s really no formalized procedure in place at present to improve. So I——

Justice SCALIA. Either citizens, Congressman, or the specialized 

bar that services that particular segment of the community—

maybe the immigration bar or the bar that handles Veterans Administration appeals, things of that sort. That’s where you usually 

get the signals from. 

Mr. WATT. Now, the ABA’s letter has certainly been vigorously 

in favor of doing this. It may be that some of their committees have 

stepped into that void and they’d like to get back out of it and formalize it in a different sense, or be participants in it but not necessarily the only voice that’s being heard in that——

19

Justice BREYER. That’s exactly right, because the Administrative 

Law Section of the American Bar Association has always been active in this area, and both, they co-existed. But what the Conference could do that the Ad. Law Section couldn’t do is just what 

Justice Scalia is talking about: they could get the access to the information inside the Government and the off-the-record reactions of 

people in charge of those agencies. So it produced a conversation 

that you can’t have as easily just through the ABA. 

Justice SCALIA. I was Chairman of the Ad. Law Section for a 

year, and there’s a big difference between showing up at an agency 

and saying, ‘‘I’m from the American Bar Association, I want to 

know this, that, and the other,’’ and coming there from the Administrative Conference which has a statute that says agencies shall 

cooperate and provide information. It makes all the difference in 

the world. 

Mr. WATT. Thank you, Mr. Chairman. I’ve always wanted to 

question Supreme Court Justices and be on the other side of the 

fence. 

Mr. CANNON. This is actually pretty cool, isn’t it? 

Mr. WATT. Yes, this is nice. [Laughter.] 

I will yield back. I’ll resist the temptation to go well beyond the 

5 minutes. I thank both witnesses and thank you for being here, 

and I yield back. 

Mr. CANNON. The gentleman yields back. 

The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Thank you, Mr. Chairman. I apologize for being a 

little bit late, but I want to also thank Justice Breyer and Justice 

Scalia for all that you do to help our country in administering the 

third branch of Government under article III. I want to tell you 

that I think everybody on this Committee, regardless of their partisan nature, wants to work with you to find ways to facilitate the 

administration of justice in a manner that best serves our country 

under the principles of the Constitution. 

And I guess to try to throw you what I hope will be a soft ball, 

maybe in my short time—I’ve read your testimony and we appreciate just how far we’ve come since 1946, for example, in the Administrative Procedure Act. I’d like to ask both of you, given that 

you’re not only, you know, great Justices but that you’ve got a 

great historical background in terms of the judicial system and 

with the changes from Justice Marshall right up through today, if 

you would maybe give us some predictions about what our court 

system will look like not 50 years ago but 50 years from now as 

we continue to evolve as a society. Maybe you could some forward 

thinking for us, if it’s not asking too much. 

Justice SCALIA. I’m hesitating, Congressman, because Justice 

Breyer and I came here to talk about the Administrative Conference, and I am afraid that if I answer your question, I am going 

to be on what is known as the slippery slope. We really didn’t come 

to talk about the courts, and—— Mr. CANNON. May I just suggest, we were just talking with staff, 

and, frankly, we would appreciate it if all the Members of the Committee would focus on ACUS. I don’t mean to correct you because 

that’s a fascinating question that I’d like to——

20

Mr. FEENEY. In that case, I’ll withdraw my question 

Mr. CANNON.—sit around with a root beer and talk to the Justices about. 

Justice BREYER. I’ll say one thing about the difference. An administrative process, by and large, is individuals dealing with a bureaucracy. It’s absolutely necessary, it’s supposed to be accessible, 

and it’s supposed to help. The judicial branch is the last place, I 

think—maybe Congress still is—where an individual who has a 

problem with the Government comes into a courtroom and looks 

face to face at the sole individual, usually a district judge, who is 

going to make that decision. 

Now, to me, that’s an incredibly valuable thing. And to me as 

well, although the judicial process is too expensive and it takes too 

long, I think it’s essential to preserve its nature, which is not an 

administrative bureaucracy. And there is room for both. So I can’t 

predict but I can hope, and I hope that 50 years from now the judicial branch will still not be a bureaucracy; it still will be a place 

where the individual comes face to face with that high Government 

official who will decide his or her case; and I also hope it will be 

a lot less expensive and will be run more expeditiously. 

But as I say, those are hopes and they are not predictions. 

Justice SCALIA. He’s provoked me now. [Laughter.] 

If I were going to compare the two, one of the great things about 

our judicial system is that our courts are not a bureaucracy. It is 

the principal difference between our judicial system and the judicial systems of most of the civil law countries. In the Anglo-Saxon 

system, a judge becomes a judge, at least on a prestigious court 

such as a Federal district court or any of the Federal courts, at the 

summit of a successful legal career. He not only has not been a bureaucrat his entire life, he has usually been litigating against the 

Government. So he comes on to the bench with a really independent mind. He is not inclined to swallow everything the Government tells him and so forth. 

In the civil law system, you become a judge right after law 

school. You pick your career. If you want to become a judge, you 

start off as a baby judge and you get promoted through the whole 

judicial system. This creates a wholly different mindset. The 

strength of our courts is precisely that they are not a bureaucracy. 

And that’s why they can help the citizen confronted with a sometimes misunderstanding bureaucracy. But I don’t want to talk 

about the court——

Mr. CANNON. If the gentleman yields back, let me just point out 

that the comments from the panel are very important in the context of what we’re doing here because, before you get to a judge, 

you often have to go through a very long process. And the fact that 

a judge who may be a little bit contrary to the Government, has 

an independent streak, is going to oversee that, is a remarkably 

important part of the process. But, of course, how we get that person through the process, his claims are adjudicated, are dealt with 

early, saving him time and money is very, very important. So we 

appreciate that. 

I’d like to inform the panel that we expect five votes within about 

10 minutes from now, so I am going to actually tap the gavel at 

21

5 minutes. And I hope that we have—Mr. Delahunt, did you want 

to take 5 minutes? 

Mr. DELAHUNT. I will try to limit myself. 

Mr. CANNON. Let me just poll the panel here. I take it, Mr. Conyers, you’d like to ask questions. Mr. Scott, yes. Good. Let me recognize Mr. Delahunt. We’ll go to Mr. Scott. If there is some time 

left, I will wrap. But we do have votes coming, so let’s watch the 

clock. 

Thank you, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. And welcome to both 

judges, and a particularly warm welcome to Justice Breyer, who 

served, as you’ve indicated and as he’s alluded to, in the First Circuit, where he served so well and earned the admiration of the 

Massachusetts Bar and the citizens of Massachusetts and obviously 

other States encompassed in it. It’s good to see you, Judge. 

Justice BREYER. Thank you. 

Mr. DELAHUNT. Clearly, both of you indicate, you know, support 

for reauthorization, and as we discuss it among ourselves, I dare 

say there’s a consensus that when it was functioning, it served a 

very valid purpose. I think both of you have at least implicated 

that it resulted in efficiencies, improvements that translated into 

savings—savings of tax dollars. 

I’d speculate that this panel and most likely the full Committee 

would support reauthorization. I think that’s the inclination of the 

Chair of the Subcommittee. I can’t find any reason not to. Is there 

any reason not to? Let me pose that question to you. 

Justice SCALIA. Well, there’s always money, but I guess nobody’s 

mentioned, and I meant to mention at some point in my testimony, 

that I think the Administrative Conference was an enormous bargain because you are really getting the benefit of the legal advice 

of, I think, some very good private lawyers whose time nowadays 

probably goes out at 500 bucks an hour or something like that. 

Their time was contributed. They got no compensation for serving 

on the Assembly of the Conference. The only expense to the Government was their travel expenses to come to Washington for the 

meetings. But they expended a considerable amount of time in 

committee meetings, in preparing drafts of recommendations—and 

all of this was provided to the Government gratis. 

Mr. DELAHUNT. It’s a good investment. You know, earlier, I think 

it was you, Justice Scalia, that indicated—I mean, this is not an 

issue that’s attracting a standing-room-only crowd. You know, it’s 

tough to keep your eyes open. 

Justice SCALIA. I’d worry for the country if it did, Congressman. 

[Laughter.] 

Mr. DELAHUNT. Right. And I would concur with those sentiments. But I think it was you, Justice Breyer, that indicated that 

during your tenure there and during the course of the AC’s existence, you know, there were significant savings, that it’s a good investment. It wasn’t just a question of taking advantage of highpriced talent, but the results translated into efficiencies that, in 

fact, saved considerable dollars. 

We have to—if this Committee at some point in time should have 

legislation before it and it leaves here, our responsibility is going 

to be to sell it to our colleagues to ensure passage. And I think 

22

what our responsibility is—and I think your testimony, both of 

your testimony here today have provided a record to be able to honestly relate that this is a way to save money, as well as to make 

it more streamlined. 

Mr. CANNON. Would the gentleman yield? 

Mr. DELAHUNT. Sure. 

Mr. CANNON. Justice Scalia, you just said that you compared the 

value or the cost to the Government with the value of the inputs, 

that is, a $500-an-hour lawyer. And I think Mr. Delahunt is moving toward another perspective, which is that we got a lot of value 

out. We would just love, for the record, if you have some way to 

give us a comparison between, say, the $3 million we’re looking at 

authorizing and the value Government gets as product. 

Justice BREYER. Suppose, for example, that you—and I think this 

is a fair example. In a world where it did at one point take an average of several years from the time a rulemaking was considered 

until the time it went into effect as a result of improved procedure 

you cut a month or two off that process, as undoubtedly regulatory 

rulemaking negotiation, even where imperfect, did, and cut off far 

more than that, well, you’ve saved your $3 million right there. 

Mr. CANNON. That might be billions of dollars. 

Justice BREYER. It could. It easily could, a major environmental 

rule, and that’s not even taking account of the fact that the environment will then be protected that much sooner. So there is huge 

saving directly to the public, I think, through a more efficient set 

of rules. 

Mr. DELAHUNT. Mr. Chairman, what I would recommend is that 

you, along with the Ranking Member, request either the CRS or 

some appropriate agency to conduct a review, if you will, that could 

prospectively provide us at least a vague range of the savings that 

could be effected if it was reauthorized, and maybe we could end 

up passing this, getting it on the suspension calendar, and go 

where we should. 

Thank you. Thank you, Judge. 

Mr. CANNON. We expect to have another panel at some point in 

the future. Maybe we can get that cost/benefit then. But let me just 

say for the record now, it appears to me that we’re talking about 

a few million dollars compared to billions of dollars in cost to industry, and as Justice Breyer pointed out, a failure to implement 

protections to save the environment which may be incalculable in 

value. 

Justice Scalia, I think you—— Justice SCALIA. I was just going to say, don’t judge it just on how 

much money it saves, because not all of its recommendations are 

money-saving recommendations. There are two values involved 

here: one is efficiency, the other one is fairness. Sometimes you 

have agencies’ procedures that are just unfair, and it might take 

a little more money to make them fair. But you’d want to do that. 

So I don’t think you can just judge it on the basis of financial 

cost saving, although I wouldn’t be surprised if it ended up having 

saved money overall in its recommendations. 

Mr. CANNON. Thank you, Justice Scalia. 

We’ve had Mrs. Blackburn from Tennessee join us. We have a 

short—time is—we have a vote coming up, and I was going to recVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 G:\WORK\COMM\052004\93774.000 HJUD1 PsN: 93774
23

ognize Mr. Watt first, if that would be okay with you—pardon me. 

My Ranking Member is so prominent in my mind that I sometimes 

mistake that. Mr. Scott, would you like to be recognized for 5 minutes? 

Mr. SCOTT. Thank you, Mr. Chairman. 

When Justice Breyer talked about a rate setting, it reminded me 

of that line in ‘‘A Man for All Seasons’’ when Sir Thomas More was 

charged more than the regulated rate for a boat trip, and the response from the boatsman was that the fee coming this way downstream is the same as the fee going back upstream. Whoever set 

the rate doesn’t row a boat. [Laughter.] 

Justice SCALIA. I remember that line. 

Mr. SCOTT. And I’ve remembered that. 

The Conference presents nonpartisan, well-documented facts and 

analysis. We ought not be afraid of intelligent experts’ advice, even 

if it disagrees with our political position. And so I’ve always been 

a supporter of the Conference. 

Let me just ask one question. The members of the Conference 

don’t fall out of the sky. The executive branch, the President appoints the Chairman. Who appoints the others? And should that be 

looked at? 

Justice SCALIA. That’s in my testimony. The Chairman is confirmed by the Senate, so it’s not just a Presidential appointment. 

The private members of the Conference are appointed just by the 

President. And—I think that’s right. Yes. And I think one of the 

jobs of the Chairman is to make sure that the organization does 

not become a partisan organization, that it is not used in order to 

further the policies of the current Administration. If that happens, 

it is deprived of all of its usefulness. 

Mr. SCOTT. Is there something we can do in the appointment—

membership appointment process to make that more likely? 

Justice SCALIA. I think you have to be very careful in selecting 

the Chairman. I think it’s the Chairman’s job. You have to remain 

friendly to the Administration. You know, if the Administration 

thinks that you’re a bomb thrower and, you’re going to be hostile 

to them, you’re not going to get the kind of access you need. But, 

on the other hand, you cannot let the Administration load up the 

Conference with people who don’t have the expertise that you want 

or with people who have axes to grind. It’s up to the Chairman to 

fight against that. And to the extent he’s unsuccessful, the Conference will not be what it ought to be. 

Justice BREYER. You might, Congressman, put a word ‘‘bipartisan’’ somewhere, you know, appropriate as an objective. I used to 

attend the meetings when President Carter was President and 

then again when President Reagan was President. And so I saw 

that change of Administrations. I don’t think it makes a big difference. It made some difference. I wouldn’t say zero. But I don’t 

think it made an enormous difference to the output of the Conference. 

Mr. SCOTT. Were Chairmen reappointed? 

Justice BREYER. No. There were different Chairmen, and it was 

viewed as a prerogative of the Administration. But as I say, the nature of the entity was such that they were searching for bipartisan 

members. It mostly—there were law professors and there were priVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 G:\WORK\COMM\052004\93774.000 HJUD1 PsN: 93774
24

vate practitioners. So that’s why I say—I didn’t think it was a 

problem, but I can’t say it’s a zero impact. So urging I think helps. 

I don’t think it’s necessary to legislate it. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Justice SCALIA. I take back what I said earlier. The public members were appointed by the Chairman with the approval of the 

Council. So it wasn’t a matter of the President appointing the private members. The Chairman did have good control over who went 

into the body of the Conference. And so long as he was able to resist any untoward pressures from the Administration to appoint 

people that they for some reason—I don’t know—owed a debt to or 

wanted to put in there so that they could push Administration policies, it was the job of the Chairman to resist that. And he had the 

power to do it because ultimately he was the one who nominated 

the members of the Assembly. And it worked very well in that 

manner, for as long as I knew it anyway. 

Justice BREYER. I would hope that they would go back for the 

first set of appointments and look for some people that have a historic memory—there are a lot of them around—to try to reconstruct 

the mores of the institution. 

Mr. CANNON. It is my sense that the power of the Administrative 

Conference is actually derived from the credibility of the members, 

and that if you ever got in a partisan situation, it would destroy 

the reputation of the Chairman, principally, and would set the 

Conference back a year or two or three before you would get it 

changed out and get new people in. And no man or woman who is 

of the stature to become Chairman of the Administrative Conference is going to allow his or her reputation to be destroyed over 

partisanship when, in fact, no matter how partisan you are, the 

rules are the critical thing here. And administrative interests are 

best protected by having clear rules that then the Administration 

and political people can play with. 

Justice SCALIA. That is absolutely true. And let me mention one 

other factor. As I said in my prepared testimony and in my opening 

remarks, the initial Chairmen of the Conference—and I think this 

continued for a long time—were academics. And you can’t push 

academics around too much because, you know, ‘‘I’ll just go back 

to teaching, which is a great racket. I don’t have to stay in Washington.’’ So, that was, I think, one of the strengths of the Conference, that it usually had an academic as the Chairman. You just 

can’t push them around too much. 

Justice BREYER. I agree. 

Mr. CANNON. Thank you. That is a bell for votes. We have 15 

minutes. That should leave us time. Mrs. Blackburn? 

Mrs. BLACKBURN. Thank you, Mr. Chairman. 

Mr. CANNON. The gentlelady is recognized for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. And we do have the 

vote, and we need to get out of here. And I’ve enjoyed listening to 

your comments. 

I would just say very quickly, you’ve talked a little bit about the 

importance of the bipartisan, nonpolitical nature of the ACUS, and 

what I—and I’ll have to say this: sometimes in the day and age in 

which we live, when our constituents hear about trying to eliminate waste and red tape and reports from the GAO and the CRS 

25

and Government reform and the Inspector Generals and the CFO 

and the CFO Act, many times their eyes just glaze over. And so 

we appreciate you all and your concern and your attitude toward 

this and toward the hearing. 

What I’d like to hear from you very quickly is, in light of all of 

this and looking at the bipartisan, nonpolitical nature, if you will, 

of the ACUS, what would you see as being the top priorities for a 

reconstituted ACUS? 

Justice SCALIA. I think it’s similar to a question that was asked 

earlier, and my response to that was I have been out of the business for too long to know what the first things I would investigate 

are. Probably the most difficult job of the Chairman was precisely 

to identify those areas that are worthy of study. That’s what I 

spent most of my time doing; it doesn’t jump up at you. You have 

to take some time to speak to a lot of people and find out what are 

the most pressing concerns in the administrative field—which, as 

you point out, is a very dull field that not many people are interested in. But there are those of us who love it. 

Justice BREYER. Yes. We are administrative law buffs. [Laughter.] 

I can’t say what’s the most important for the same reason, but 

it does come to mind the fact that we in our Court have divided 

about five ways about the correct meaning of a case called Chevron, 

which has significance. And if I were running that now, I think 

maybe one thing I might like to do is to ask the agencies whether 

the five different things that we have said have mattered. Has it 

hurt them? Has it helped them? That’s a subject they might look 

into. 

Mrs. BLACKBURN. Well, I agree with you. I think those could be 

instructive. And for those of us in each branch of Government and 

across the field that do appreciate an effective, efficient administrative process, it would be a question worth answering. And I think 

we will depart for the votes, and, Mr. Chairman, I thank you for 

the time. 

Mr. CANNON. Thank you. I do have a couple of questions to follow 

up. 

Just along this line, while I recognize that you both are out of 

this business, it seems to me there’s some large trends in society 

that might be appropriate for the Administrative Conference. For 

instance, litigation has increased, especially in some of the environmental areas. We have a phenomenal flourishing of science in 

America, and we’re not integrating that very well, I don’t think yet, 

into our administrative process. We have communication processes 

that are remarkable, online processes that allow people to keep 

track of everybody’s comments and everybody’s input and communications between people within and without an agency. And, of 

course, there’s always the need to create an environment where we 

can have more transparency, and there are probably limits on that. 

So it would seem to me that some of those areas—and there may 

be others in your mind—where as a matter of broad scope, the nature of society has changed, and, therefore, the focus of ACUS may 

be appropriate to be adjusted to look at those things. 

Justice SCALIA. Well, I would certainly tell the new Chairman, 

one thing you might look into is whether teleconferencing couldn’t 

26

be used by agencies more than it is. I don’t know whether that’s 

something that is taken advantage of as much as it ought to be. 

Certainly there have been enormous strides in the facility of that 

procedure, the cost of it, and how close it comes to being in the 

same room. I don’t know if the agencies are doing enough with 

that. Maybe that’s one thing the Conference might look into. Instead of having lawyers and citizens come to Washington or to Peoria—wherever they have their hearings—maybe things could be 

done over the phone. I don’t know. 

Justice BREYER. I think science is a very, very good idea, good 

subject, because scientists disagree about a lot of things, but, still, 

the serious scientists are within a range of disagreement. And how 

to create a process that focuses the actual controversy within what 

I would call the consensus range is a hard topic to do. It’s been 

very difficult in the courts. We’ve had cases trying to focus on that 

issue. In Britain and in continental Europe, they’ve had major 

studies and major efforts to reform their judicial system in that respect, and they’ve proved reasonably successful. 

So there’s a lot to look at, and I think if you could make progress 

in that area, that would be very helpful to everyone. 

Mr. CANNON. Do either of you have an opinion as to whether it 

would be useful to have Members of Congress on the Administrative Conference? 

Justice BREYER. I’m not sure that it would. 

Justice SCALIA. I don’t know any Member of Congress who is an 

expert in administrative procedure. And I don’t want anybody on 

the Conference who’s not an expert in administrative procedure. 

Justice BREYER. The nature of the job is so different. I mean, the 

nature of the job as a person in Congress is to respond to those 

issues that are at a level where they have a generalized response— a generalized impact upon—— Mr. CANNON. You’re cutting me out of the process, which is sort 

of painful, I might say, with all due respect. [Laughter.] 

Justice SCALIA. You have enough work to do, Mr. Chairman. 

Mr. CANNON. What I was thinking, actually, is perhaps Members 

of—or Chairmen of the Committees that deal with administrative 

law may have an ad hoc or some other sort of role. 

Justice SCALIA. Well, they’re welcome to attend all of the plenary 

sessions, and I’m sure any of the committees would be delighted to 

have a Member of Congress sit in on the committee meeting. I 

think maybe one useful thing that could be done is to keep Congress informed of when all of these committee meetings occur. If 

they want to attend, fine. 

Justice BREYER. Congressional staffs I think did sometimes come. 

Justice SCALIA. Staff did come to the plenary sessions. I’m sure 

of that. 

Mr. CANNON. Let me just ask then a very general question. Are 

there any recommendations you would have for how to change 

what was the Administrative Conference as we go forward in the 

future? 

Justice BREYER. No, I haven’t thought about that. 

Justice SCALIA. I haven’t given thought to it, Mr. Chairman, and 

I don’t want to do it off the top of my head. Nothing immediately 

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lier. You have to be very, very demanding in the selection of the 

chief executive officer. I think it makes a big difference if you get 

people like Jerre Williams and Roger Crampton, good, solid people 

who will keep it on the right track. 

Mr. CANNON. I must say that I—you’ve said many of the things 

that I have wanted in this record. We appreciate that. The Administrative Conference has been great and been effective because of 

the kind of people that have run it and the kind of people that have 

contributed their time. I certainly would like to see it reestablished. 

I think it would have a great benefit to the American people, far 

beyond the nominal costs that we’re looking at right now. 

We thank you very much, both of you, for coming down. You 

honor us with your presence, and you’ve done great service to our 

cause of bringing back the Administrative Conference to America. 

Thank you. 

Justice BREYER. Thank you. 

Justice SCALIA. Thank you, Mr. Chairman, Members of the Committee. 

Mr. CANNON. We will now be adjourned. Thanks. 

[Whereupon, at 3:08 p.m., the Subcommittee was adjourned.] 

(29)

WHY IS THERE A NEED TO

REAUTHORIZE THE CONFERENCE? 

THURSDAY, JUNE 24, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in Room 

2237, Rayburn House Office Building, Hon. Chris Cannon (Chair of 

the Subcommittee) presiding. 

Mr. CANNON. The Subcommittee will please come to order. I 

apologize for being late. We appreciate your being here and I apologize to this esteemed panel for keeping you waiting. This is a matter of great interest and great concern and great importance. I 

think that you are important people and so I appreciate your sufferance because I believe you all believe the same thing about the 

Administrative Conference. 

Last month, as you may recall, our Subcommittee held its first 

of two oversight hearings regarding the issue of whether the Administrative Conference of the United States should be reauthorized. Supreme Court Justices Antonin Scalia and Stephen Breyer, 

the two witnesses at last month’s hearing, enthusiastically testified 

about the many benefits and accomplishments of ACUS. The Justices concurred in what may be for them a rare unanimous opinion 

in their unqualified support for the Conference’s reauthorization. 

This first hearing, at which not one but two esteemed Supreme 

Court Justices extolled the virtues of ACUS, clearly underscores 

the importance of the Conference and significance of our efforts to 

reauthorize it. 

To build on that record, today’s hearing is intended to focus in 

greater detail on exactly how we should go about reauthorizing the 

Conference. Specifically it is my hope that our witnesses will further explain the need for reauthorizing ACUS and provide guidance with respect to the form in which the Conference should be 

reauthorized, the priorities that a reauthorized ACUS should consider, and the anticipated amount of funding necessary to reauthorize the Conference. 

For those who are not familiar with the work and the accomplishments of the Conference let me briefly explain. Over the 

course of its 28-year existence the Conference issued more than 200 

recommendations, some of which were Government-wide and others that were agency-specific. It issued a series of recommendations 

eliminating a variety of technical impediments to the judicial reVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00033 Fmt 6601 Sfmt 6601 G:\WORK\COMM\052004\93774.001 HJUD1 PsN: 93774
30

view of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts included the enactment of the Administrative Dispute Resolution Act in 1990, which 

established a framework for the use of ADR. 

In addition to those accomplishments, ACUS served as the chief 

implementing agency for the Negotiated Rulemaking Act, the 

Equal Access to Justice Act, and the Congressional Accountability 

Act. The Conference also played a key role in the Clinton administration’s National Performance Review Project with respect to improving regulatory systems. Throughout its existence, ACUS has 

served as a valuable resource for Members of Congress, Congressional Committees and various Federal agencies. 

Some might ask, how can we justify reestablishing and funding 

another Government agency, especially in this belt-tightening environment? The answer, at least to me, is obvious. According to the 

Congressional Research Service, there are growing patterns of evasion among the agencies with respect to notice and comment requirements as evidenced by the increasing number of regulations 

being successfully challenged in the courts. An informal study by 

CRS indicates that 51 percent of these rules were struck down by 

the courts. Needless litigation hurts everyone. It slows the rulemaking process, encourages agencies to try to circumvent public 

comment requirements, and costs taxpayers, I might add industry, 

millions or billions of dollars. 

Another serious area of concern is the lack of a coherent approach among the agencies with respect to emerging issues and 

technologies. These issues include, for example, how the Government should handle private information it collects from our Nation’s citizens and how agencies in this Internet age can promote 

greater public participation in the regulatory process. There are 

also concerns about the need to have peer review and to have regulations well grounded in more or less clear science. Our Nation’s 

people and business communities depend upon Federal agencies to 

promote scientific research and develop science based policies that 

protect the Nation’s health and welfare. Integral to the Federal 

regulatory process is the need to assess the safety, public health 

and environmental impact of proposed regulations. Regulations 

lacking scientific support can present serious safety and health consequences as well as cause the private sector to incur unnecessary 

and burdensome compliance costs. Businesses suffer with the ability to prioritize their investments, and that is a very serious problem. Restoring the Conference in some form, from my perspective, 

would provide a cost effective yet highly valuable solution to these 

problems. 

It is against this backdrop that I look forward to hearing from 

our witnesses today. Now I turn to my colleague, Mr. Watt, the distinguished Ranking Member of the Subcommittee and ask if he has 

any opening remarks. 

[The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

The Subcommittee will please come to order. 

31

Last month, as you will recall, our Subcommittee held the first of two oversight 

hearings regarding the issue of whether the Administrative Conference of the 

United States should be reauthorized. Supreme Court Associate Justices Antonin 

Scalia and Stephen Breyer, the two witnesses at last month’s hearing, enthusiastically testified about the many benefits and accomplishments of ACUS. The Justices 

concurred—in what may be for them a rare unanimous opinion—in their unqualified 

support for the Conference’s reauthorization. 

This first hearing—at which not one, but two esteemed Supreme Court Justices 

extolled the virtues of ACUS—clearly underscores the importance of the Conference 

and the significance of our efforts to reauthorize it. To build on that record, today’s 

hearing is intended to focus in greater detail on exactly how we should go about 

reauthorizing the Conference. Specifically, it is my hope that our witnesses will further explicate the need for reauthorizing ACUS and provide guidance with respect 

to the form in which the Conference should be reauthorized; the priorities that a 

reauthorized ACUS should consider; and the anticipated amount of funding necessary to reauthorize the Conference. 

For those of you who are not familiar with the work and accomplishments of the 

Conference, let me briefly explain. 

Over the course of its 28-year existence, the Conference issued more than 200 recommendations—some of which were government-wide and others that were agencyspecific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts included the enactment of 

the Administrative Dispute Resolution Act in 1990, which established a framework 

for the use of ADR. 

In addition to these accomplishments, ACUS served as the chief implementing 

agency for the Negotiated Rulemaking Act, the Equal Access to Justice Act, and the 

Congressional Accountability Act. The Conference also played a key role in the Clinton Administration’s National Performance Review Project with respect to improving regulatory systems. Throughout its existence, ACUS served as a valuable resource for Members of Congress, Congressional Committees, and various Federal 

agencies. 

Some might ask, ‘‘How can we justify reestablishing and funding another governmental agency, especially in this belt-tightening environment?’’

The answer—at least to me—is obvious. According to the Congressional Research 

Service, there are growing patterns of evasion among agencies with respect to notice 

and comment requirements as evidenced by the increasing number of regulations 

being successfully challenged in the courts. An informal study by CRS indicates that 

51% of these rules were struck down by the courts. Needless litigation hurts everyone—it slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars. 

Another serious area of concern is the lack of a coherent approach among the 

agencies with respect to emerging issues and technologies. These issues include, for 

example, how the government should handle private information it collects from our 

nation’s citizens and how agencies—in this Internet Age—can promote greater public participation in the regulatory process. 

There are also concerns about the need to have peer review and to have regulations based on sound science. Our nation’s people and business communities depend 

upon Federal agencies to promote scientific research and to develop science-based 

policies that protect the nation’s health and welfare. Integral to the Federal regulatory process is the need to assess the safety, public health, and environmental impact of proposed regulations. Regulations lacking sound scientific support can 

present serious safety and health consequences as well as cause the private sector 

to incur unnecessary and burdensome compliance expenditures. Restoring the Conference in some form—from my perspective—would provide a cost-effective, yet 

highly valuable solution to these problems. 

It is against this backdrop that I look forward to hearing from our witnesses 

today.

Mr. WATT. Thank you, Mr. Chairman, and I thank the Chairman 

for convening another hearing on this subject, the reauthorization 

of the Administrative Conference of the United States. If this 

works, the process that we are following, this will be a classic example of how the legislative process should work, which is to say 

you start by thinking about whether there is a need for something 

to be reauthorized or to be approved and you have a series of legisVerDate 0ct 09 2002 15:40 Nov 03, 2004 Jkt 089266 PO 00000 Frm 00035 Fmt 6601 Sfmt 6601 G:\WORK\COMM\052004\93774.001 HJUD1 PsN: 93774
32

lative hearings to document the need that you think exists and to 

document the arguments against whatever you are proposing and 

to evaluate how you ought to implement or reauthorize. 

We started this process, thanks to the Chairman, with two distinguished members of the United States Supreme Court and both 

of them were in agreement about the need for the Administrative 

Conference of the United States, and we are taking this second 

step in the process with what appears to be an equally distinguished panel of witnesses, and I am looking forward to hearing 

their testimony. We obviously have our predilections about the 

need for reauthorizing the Administrative Conference of the United 

States, but need to hear from people who have dealt with it more 

close up, more hands on and to justify having such an entity in 

place and, if there is a need for it, justify how it ought to be reauthorized. 

So I thank the witnesses for being here, and I am looking forward to your testimony, and I am looking at the reporter now who 

is saying, man, he talks a lot slower than that other guy, which 

was the reaction that I used to get when I was practicing law. All 

of the court reporters loved me because I do talk slow enough that 

they can take down what I am saying. 

Mr. CANNON. You are thinking as you are talking, and I was 

reading and that is probably why. I just try to get through the 

reading so we can get to the real stuff and ask questions. 

Mr. WATT. All right. Well, I yield back. I appreciate you having 

a hearing and I certainly support the process and the objective. 

Mr. CANNON. I thank the gentleman. Without objection, the gentleman’s entire statement will be placed in the record. It has been 

a pleasure to work with the Ranking Member on this issue and on 

many other issues. He and his staff have worked with us and it has 

been good to move this process forward. I think it has been a 

thoughtful process, and I think we are at a point where after this 

testimony we are able to refine what we project to do and get some 

legislation moving. 

Without objection, all Members may place their statements into 

the record at this point. Any objection? Hearing none, so ordered. 

Without objection, the Chair will be authorized to declare a recess of the Subcommittee today at any point. Hearing no objection, 

so ordered. 

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusion in today’s hearing 

record. 

In that regard I ask unanimous consent that the record include 

two letters we received in support of reauthorizing the Conference, 

both of which were previously distributed to the Subcommittee 

Members. The first is from Richard Chernick on behalf of the 

American Bar Association’s Section of Dispute Resolution. The 

other is from Professor Paul Verkuil of the Benjamin N. Cardozo 

School of Law of Yeshiva University. Professor Verkuil is the 

Chair-elect of the Association of American Law School’s Section on 

Administrative Law. 

[The information referred to follows:]

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Mr. CANNON. And now I would like to recognize the gentleman 

from North Carolina for 5 minutes for the purpose of making a 

statement on the record. 

Mr. COBLE. Well, thank you, Mr. Chairman. I will be very brief, 

Mr. Chairman. I have another meeting I have got to attend, but 

I want to commend you and Mr. Watt. I think you two have done 

a good job of steering the Subcommittee on Commercial Administrative Law very adeptly through the sometimes shoals, reefs, and 

rocks that await you up here. But you all have managed to avoid 

those. 

As you pointed out, this is a very significant issue and, Mr. 

Chairman, you have assembled a very distinguished panel, not the 

least of whom is Mr. Watt’s and my fellow Carolinian, Mr. Boyden 

Gray. But it is good to have all of you here. I apologize, Mr. Chairman, for departing, which is going to be in about 12 or 15 minutes, 

but I thank you. 

Mr. CANNON. Thank you for coming. Mr. Feeney, did you want 

to make any comments to start. 

Mr. FEENEY. Well——

Mr. CANNON. The gentleman is recognized 5 minutes. 

Mr. FEENEY. Well, like Mr. Coble, I will have to be leaving early, 

too, but I have read the testimony of all the witnesses. Appreciate 

you being here. I am very optimistic, like Mr. Watt is especially, 

about this meeting. My short time here in Congress leads me to believe that there is an inverse relationship between how much work 

we get done in Committee and how many live TV cameras and 

microphones there are, so I am optimistic. 

Mr. CANNON. The suggestion being that we do boring and important stuff. 

Mr. Chabot, did you want to address the——

Mr. CHABOT. I enjoy boring stuff as much as anybody else does, 

Mr. Chairman. I am happy to be here this afternoon. But important stuff. 

Mr. CANNON. Thank you. 

Mr. WATT. Mr. Chairman, can I ask unanimous consent to submit for the record the testimony of Sally Katzen that has been offered for the record. 

Mr. CANNON. Without objection, so ordered. 

[The prepared statement of Ms. Katzen follows:]

PREPARED STATEMENT OF SALLY KATZEN

Mr. Chairman and Members of the Subcommittee: 

I greatly appreciate the invitation to testify in favor of the reauthorization of the 

Administrative Conference of the United States (ACUS). For the last several years, 

I have been teaching undergraduates (at Smith College) and graduate students 

(most recently at the University of Michigan Law School and at Johns Hopkins University); among the courses I teach are Administrative Law and The Regulatory 

Process. During the Clinton Administration, I served as the Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget 

(1993–1998), where I was responsible for the development and implementation of 

the Administration’s regulatory policy. Before joining the Clinton Administration, I 

was a partner in the Washington DC law firm of Wilmer Cutler and Pickering, 

where I specialized in administrative law. I also served as the Chair of the American Bar Association Section on Administrative Law and Regulatory Practice (1988–

89). 

Most relevant in establishing my credentials on the subject of today’s hearing is 

the extensive experience I have had with ACUS. I was first appointed a Public 

39

Member in 1988 while I was in private practice. I served on several of the ACUS 

committees, eventually chairing the Committee on Judicial Review. I was therefore 

actively involved in the preparation and presentation of various reports and recommendations of ACUS in the late 80’s and early 90’s. In l994, President Clinton 

appointed me one of the five government members of the Council (the governing 

board of ACUS) and designated me as the Vice Chairman. I served in that capacity 

(and for a time as Acting Chairman) until ACUS was closed. 

In fact, I was privileged to testify before this Committee on April 21, 1994, in support of reauthorization of ACUS. [A copy of that testimony, which was reprinted in 

8 Admin. L.J. Am. U. 649 (1994), is attached.] Today, I again urge your favorable 

consideration to authorizing ACUS as an independent agency to study administrative law issues and make recommendations to improve the efficiency, adequacy and 

fairness of the federal government’s administrative procedures (paraphrasing the 

1964 Administrative Conference Act). 

Others have testified about the significant substantive contributions made by 

ACUS, citing specific studies or recommendations or advice to the Congress, the Executive Branch and even the Judiciary. Others have made the point that the structure and composition of ACUS enabled a relatively modest amount of taxpayer funding (less than $3 million annual appropriations) to be leveraged by the far greater 

contributions in kind by practicing lawyers and academics. And you have heard that 

several of the recommendations of ACUS actually saved the federal government significant amounts of money by increasing the efficiency of administrative processes 

without decreasing fairness for the participants. I do not want to repeat what others 

(including my earlier testimony) have said. 

The point I want to emphasize is that my (and others’) judgment on the value 

of ACUS have only strengthened with the passing of time. It is often said that you 

do not appreciate what you have until you no longer have it. That, I believe, sums 

up the past decade for those of us who work in the field of administrative law. 

After ACUS closed and while I was still in government, there were several occasions when I and other senior government policy officials would have greatly benefited from having ACUS opine on pending developments—from how to conduct rulemaking proceedings in an electronic age to how to implement a new program in the 

most efficient, effective and equitable way. We knew from past experience that the 

ideas being considered, while meritorious, might well be improved as the result of 

an objective, non-partisan appraisal/critique. I cannot imagine that those in the current Administration would have any different view. In fact, at a conference held recently at American University on electronic rulemaking, several participants in the 

session on ‘‘next steps’’ (some with government experience and others currently in 

government) called for resurrecting ACUS to provide the kind of broad-based public 

and private input that is essential for good decision making in this area. 

There are two aspects of ACUS that I think are sorely missing. First, on matters 

of substance, ACUS provided an invaluable institutional memory. Invariably, administrations change, and with each new administration there are some bright new 

ideas about how to conduct or carry out administrative processes. Some of these 

ideas are fresh and productive and welcome. Some, however, may sound good or appear simple at first look, but they have in fact been tried before and failed or been 

seriously flawed for one reason or another. What ACUS provided was a forum for 

those who worked and wrote in the field to discuss, evaluate, and provide constructive suggestions based on real life experience. Now when senior government officials 

are presented with a proposal to address or resolve a particular problem in administrative practice, they can—and presumably do—seek out the views of some in the 

academy, individual private practitioners, or their colleagues in other federal agencies (if they know or can find out that these officials have dealt with this or a similar issue). But there is no central repository of expertise and experience that can 

provide a collective view—incorporating the considered judgment of those in the 

public and private sectors, those in academics and those in public administration, 

and importantly, both Democrats and Republicans. That was the beauty, or genius, 

of ACUS—for its very small staff was able to reach out to almost 100 of the most 

knowledgeable and experienced people in the field and tap the accumulated wisdom 

of the profession for the public good. The absence of ACUS is a tremendous loss to 

good government. 

The second aspect follows from a point made above. As I said, the members of 

ACUS came from, and brought with them, varied perspectives. This diversity of 

views was enhanced by the long-standing and time-honored tradition of appointing 

the public members—those from the private sector—across party and philosophical 

lines. And the bi-partisan and collegial nature of ACUS was maintained not only 

in the selection of members, but also in the operating committees and the plenary 

sessions. Simply stated, ACUS was one place where Democrats and Republicans 

40

worked together. We might have disagreed (strenuously) on the substance of the 

proposal—should there be a government program in this area or not—but if, in the 

wisdom of Congress, there was to be such a program, we could all agree that it 

should be conducted fairly and efficiently. It is significant, I believe, that both Justices Scalia and Breyer testified in favor of reauthorizing ACUS. Today, Boyden 

Gray and I both speak as stalwart supporters of ACUS. With divided government 

and the increased partisanship that has characterized the last several decades in 

Washington, there are very few such bi-partisan institutions—I should probably say 

non-partisan institutions—where people with vastly different political views can and 

do see eye to eye on administrative processes. That too was the beauty, or genius, 

of ACUS—for those with differing positions to be heard and be reconciled for the 

public good, and that too has been sorely missed. 

I thank this Subcommittee for reexamining this issue and for favorably considering the reauthorization of ACUS.

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Mr. CANNON. I would now like to introduce our witnesses for today’s hearing. 

Our first witness is C. Boyden Gray. Mr. Gray is a partner in the 

newly reconstituted firm of Wilmer Cutler Pickering Hale and 

Dorr. His practice focuses on a broad range of regulatory issues 

with emphasis on environmental matters, including those related 

to biotechnology, clean air, trade and the management of risk. 

Mr. Gray received his undergraduate degree from Harvard University and his law degree from the University of North Carolina. 

After serving as a law clerk for Chief Justice Earl Warren of the 

United States Supreme Court, Mr. Gray joined the predecessor of 

his current law firm. In 1981, he served as Legal Counsel for Vice 

President George Bush. He also served as Counsel for the Presidential Task Force on Regulatory Relief. Thereafter, Mr. Gray was 

Counsel to President Bush from 1989 to 1993. Mr. Gray appears 

today on behalf of the American Bar Association. 

Joining Mr. Gray is Professor Gary Edles. Professor Edles is a 

Fellow in Administrative Law at American University Washington 

College of Law. He is also a visiting professor at the University of 

Hull Law School in England. In addition to an extensive academic 

career, Professor Edles has had a wide-ranging legal career as a 

senior civil servant, specializing in Government regulation and the 

administrative process. Of particular interest, he served as General 

Counsel of ACUS from 1987 to 1995. 

Professor Edles received his law degree from New York University and his Master of Laws and Doctor of Juridical Sciences Degrees from George Washington University Law School. 

Our next witness is Professor Sallyanne Payton. Professor 

Payton teaches at the University of Michigan Law School. During 

her professional career she has worked in the public and private 

sectors. In the 1970’s, for example, she was a Staff Assistant to the 

President for the White House Domestic Council. She later became 

Chief Counsel for the Urban Mass Transportation Administration 

of the U.S. Department of Transportation. Over the course of nearly 20 years, Professor Payton served as either a Public Member or 

Senior Fellow at ACUS. 

Professor Payton received both her undergraduate and law degrees from Stanford University. She appears today on behalf of the 

Executive Organization and Management Standing Panel of the 

National Academy of Public Administration. 

Our final witness is Professor Philip Harter. I understand that 

you interrupted your vacation in Vermont to attend today’s hearing, for which you are to be commended. We thank you. Professor 

Harter is the Earl F. Nelson Professor of Law At the Center for the 

Study of Dispute Resolution at the University of Missouri-Columbia School of Law. Over the course of his 35-year career in academia and the private sector, Professor Harter worked closely with 

ACUS in various capacities. While the Conference’s senior staff attorney, he created a program on regulatory reform. As a consultant 

to ACUS, he developed the concept of negotiated rulemaking and 

authored a series of articles on the use of dispute resolution techniques by the Federal Government. 

Professor Harter received his undergraduate degree from Kenyon 

College and his law degree from the University of Michigan. 

59

I extend to each of you my warm regards and appreciation for 

your willingness to participate in today’s hearing. In light of the 

fact that your written statements will be included in the hearing 

record, I would request that you limit your oral remarks to 5 minutes accordingly. Please feel free to summarize and highlight the 

salient points of your testimony. 

You will note that we have a lighting system before you that 

starts with a green light. After 4 minutes it turns to a yellow light 

and then 5 minutes it turns to a red light. My habit is to tap the 

gavel at 5 minutes. We would appreciate if you finish up your 

thoughts within more or less that time frame. We don’t like to cut 

people off in their thinking and so we are not strict on this point, 

but it works better especially—well, I am not sure how many people we have here to question but I have some questions of the witnesses. We will go through those and you will have an opportunity 

to flesh out your thinking thereafter. After the witnesses have presented their remarks, the Subcommittee Members in the order of 

the time of their arrival will be permitted to ask questions of the 

witnesses, also subject to the 5-minute rule. 

That said, Mr. Gray, would you precede with your testimony? 

STATEMENT OF C. BOYDEN GRAY, ESQ., WILMER CUTLER 

PICKERING HALE AND DORR LLP, ON BEHALF OF THE 

AMERICAN BAR ASSOCIATION 

Mr. GRAY. Mr. Chairman, thank you very much for inviting us 

and inviting me, and I testified before, I think, this very same Subcommittee a couple of years ago against the termination of ACUS. 

So I am very honored to be back to help support its reauthorization. 

I just want to make a couple of observations in addition to what 

my prepared text says, which is the official position of the ABA. 

The U.S. administrative law system I believe is the best in the 

world. It is the most transparent, the fairest and the most economically productive, especially when you look at it in comparison to the 

emerging EU, European Union, system, which is far more bureaucratic, biased against innovation, opaque, and encouraging support 

for incumbents rather than for a level playing field and equal opportunity for all competitors. I think ACUS deserves some of the 

credit for this state of affairs. 

The Administrative Procedure Act is unrecognizable in the sense 

of its original language. It has been largely rewritten, not in derogation of the congressional intent, but to flesh out what the words 

mean, ACUS was an important part of this evolving growth and we 

have a very, very sophisticated administrative system as a result. 

There are now, I think, some strains in the system. 

OIRA, the nerve center at OMB, the Office of Information and 

Regulatory Affairs, often provoked a polarized political response 

notwithstanding the fact that I believe Dr. Graham has done a 

great job, especially with his innovations of the so-called prompt 

letter, which is a guide to agencies to do something if to do so 

would produce a result where its benefits greatly exceed cost. He 

has been very, very evenhanded in his administration of that office, 

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ment as a whole, if he could have a forum for ventilation of arguments for and against his administration of that office. 

There are some other issues that have come up during his tenure, issues involving data quality and related issues involving peer 

review. I think that these three issues would be very useful subjects of study by ACUS if it were to be reauthorized. And I would 

add to this that the notion of looking at the European Union and 

comparative study of its procedures. The Administrative Law Section of the ABA has embarked now on such a study. I am not sure 

it wouldn’t be better if this study could be picked up by a neutral, 

obviously neutral Government entity, rather than have the private 

sector do it with questions about where the funding came from and 

what the funding influence is. I am not sure this transfer could be 

made, but to do a comparison I think is something that hopefully 

ACUS would be in a position, if it were reauthorized, to do. 

Many of the problems that—and they are not serious problems, 

but they are serious enough to warrant the reauthorization of this 

entity. Many of the problems result, if you step back, from a lack 

of dialogue and nonpartisanship or bipartisanship which has characterized the development of the administrative system in this 

country. We need to reinject some bipartisanship into the administrative process. That was the genius of ACUS. 

You asked how it should be reauthorized, the form. I am not sure 

I understand exactly the question, but I am not sure I would make 

it any different than it was before. There was a town hall air to 

much of what it did, a little boisterous, a little out of hand sometimes, people shouting at each other, but it was all in an effort to 

maintain a dialogue in the public meetings, and it was enormously 

successful. I should point out that the history of substantive administrative law has been one of bipartisanship, often forgotten. 

We perhaps think today, and we shouldn’t do this but we probably do, of deregulation as a Republican idea to be opposed by 

Democrats, something that Reagan started, to be frustrated by 

Democratic Presidents. This is, I think, an erroneous view. The 

major deregulation that we have was started really by Senator 

Kennedy and then Professor Breyer, doing transportation deregulation. It was picked up and carried by President Carter with Stu 

Eisenstat taking the lead as Domestic Policy Adviser. Then of 

course it was picked up by Reagan in a more intensive way. But 

there is a direct line of antecedence going all the way back, actually to President Nixon, I think, and it is shared by all Democratic 

Presidents, and I think it would be a mistake to lose this sense of 

shared bipartisanship which has made our system the envy of the 

world. And I do think that ACUS would be very critical to getting 

us back to where we were some years ago. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gray follows:]

PREPARED STATEMENT OF C. BOYDEN GRAY

I am pleased to be asked to testify here on behalf of the Administrative Law and 

Regulatory Practice Section of the American Bar Association, and the ABA itself, 

on the question of the reauthorization of the Administrative Conference of the 

United States (‘‘ACUS’’). The views expressed in this testimony are similar to the 

letter previously sent to this Subcommittee by Professor William Funk, Chairman 

of the Administrative Law Section. I am myself a former member of the Conference, 

61

as well as a former Chair of the Administrative Law Section of the ABA, and I testified before this Committee on May 11, 1995 to oppose the termination of ACUS (testimony attached). 

As you know, the Administrative Conference was established in 1964 as a permanent body to serve as the federal government’s in-house advisor on, and coordinator 

of, administrative procedural reform. It enjoyed bipartisan support for over 25 years 

and advised all three branches of government before being terminated in 1996. 

Through the years, the Conference was a valuable resource providing information 

on the efficiency, adequacy and fairness of the administrative procedures used by 

administrative agencies in carrying out their programs. This was a continuing responsibility and a continuing need, a need that has not ceased to exist. 

The Conference’s work in some cases resulted in bipartisan legislation to improve 

the administrative process. For example, both the Negotiated Rulemaking Act of 

1990 and the Administrative Dispute Resolution Act were the product of the Conference’s work, both in terms of the studies and reports that underlay the justification for these two laws and also in terms of the interested persons and agencies 

brought together to support the law. 

In other cases, the Conference’s work made legislation unnecessary. For example, 

early studies indicated that the exemption from notice and comment in the original 

Administrative Procedure Act for rulemakings involving public property, grants, 

contracts, loans, and benefits was no longer necessary or desirable. As a result of 

the Conference’s work, virtually every agency voluntarily subjected itself to noticeand-comment rulemaking when dealing with these subjects, improving the transparency and acceptability of government rules without the need for legislative 

amendment. 

The hallmark of the Conference’s work was its ability to provide expert and nonpartisan advice to the three branches of government. Drawing on the large number 

of volunteer public members of the Conference, as well as representatives from a 

wide spectrum of agencies, the Conference fostered a conversation among all interested persons and agencies. Utilizing academics for empirical research, which was 

reviewed first by subject matter committees staffed by members of the Conference 

and then by the full Conference, the Conference was able to provide a factual predicate for improvements in the administrative process that were not identified as ideologically or partisan-based proposals. 

I stress the fact that over a quarter century the Administrative Conference of the 

United States maintained a reputation for non-partisan, expert evaluation of administrative processes and recommendations for improvements to those processes. It 

had no power but the power to persuade, and no political constituency other than 

those interested in improving administrative government. 

Not only was the Conference a source of expert and nonpartisan advice, the Conference played an important facilitative role for agencies in implementing changes 

or carrying out recommendations. Thus, a number of statutes, including the Government in the Sunshine Act and the Equal Access to Justice Act, specified that the 

Conference work with agencies in adopting the agencies’ initial regulations. More 

recently, the Conference worked tirelessly to help agencies understand and utilize 

the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. 

Today, adapting administrative processes to make best use of the Internet is a hot 

topic, but one for which there is no central organization to study different techniques, assess them, and then facilitate the implementation of those that are best. 

It is a testament to the Conference’s unique position that today persons of such 

differing judicial philosophies as Justices Scalia and Breyer can rally behind the recreation of the Conference. Nor is it hard to find many others from across the political spectrum who will similarly commend the re-creation of the Conference to your 

subcommittee. Past chairs of the Conference, such as Professors Marshall Breger 

and Robert Anthony and Judge Loren Smith from one side of the aisle, can join 

hands with lawyer Sally Katzen and administrative judge Thomasina Rogers on the 

other side. 

The Conference proved itself effective at promoting efficiency in government for 

over 25 years. The American Bar Association has long supported the Conference and 

the role it played in advancing administrative procedural reform. We urge you to 

support legislation that would reauthorize the Conference and provide it with funds 

that are sufficient to permit it to continue its important mission. 

You have asked for comments on the form in which the reauthorization should 

take place, and for the regulatory reform priorities a reauthorized Conference 

should examine. I see nothing obvious to change in the way the Conference worked 

before; sometimes it behaved like a town meeting, but that was, and hopefully will 

again be, part of its success as a non-partisan venue. As for items to study, we 

62

would suggest some empirical research on the innovation of the OMB ‘‘prompt’’ letter, matters relating to data quality and peer review issues. 

ATTACHMENT

Mr. CANNON. Thank you, Mr. Gray. You have packed an enormous amount of ideas into 5 minutes. I want to go back and explore some of those. Let me just point out here in conjunction with 

what Mr. Watt said and what I would also say. Some of the most 

important issues we have before us today are some of the things 

that we believe will make a difference, are absolutely not partisan 

and have been kept out of the partisan environment. They ought 

to be developed in a nonpartisan environment like ACUS so that 

we can work on some of those very important issues. 

Appreciate your testimony. Mr. Edles. 


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STATEMENT OF PROFESSOR GARY J. EDLES, FELLOW IN ADMINISTRATIVE LAW, AMERICAN UNIVERSITY WASHINGTON 

COLLEGE OF LAW AND GENERAL COUNSEL, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (1987–1995) 

Mr. EDLES. Mr. Chairman and Members of the Subcommittee, I 

am truly delighted to be here this afternoon to participate in these 

hearings that I do hope will lead to the reauthorization and re-creation of the Administrative Conference. I served in both Republican 

and Democratic Administrations at ACUS, and I thoroughly endorse the thoughtful comments offered by Justice Scalia and Justice Breyer last month as to the need to reestablish ACUS at this 

point in time. But it is certainly reasonable to ask, it seems to me, 

why there is a need for ACUS nearly a decade after it was abolished. 

The simple answer I think is that new regulatory issues have 

arisen in the past decade so that the type of analytical work that 

ACUS once did again needs to be done, and there really isn’t any 

other institution capable of taking on the task in quite the same 

way. So even if one believes that ACUS had to some extent completed its earlier mission by 1995, it is certainly time to start it up 

again. Other individuals or institutions, law professors, experts in 

public administration, bar associations have to some degree 

stepped into the vacuum that was created by ACUS’s demise. But 

those individuals or groups rarely have the type of resources or the 

inclination to take on day in and day out the numerous and various 

issues that ACUS did, to see projects through from a recognition 

of the problem to its meticulous examination to the design of a solution and eventually its implementation. 

I should also add on a personal note that judging from the voice 

mails and e-mails that I get in my American University office from 

Government employees even to this day, there is obviously still a 

need for the type of institutional memory and expertise that ACUS 

once provided. 

I don’t have the precise agenda for an ACUS of the 21st century, 

but I do know that much has changed in the 9 years since ACUS 

was abolished. The era of electronic communication and its role in 

Government decision making, for example, was just beginning in 

1995, and it is now in full flower. Problems affecting immigration 

procedures are surely different today in light of our country’s security needs occasioned by 9/11. There are certainly new questions 

concerning the organization of the Federal Government. What’s the 

proper role for public-private partnerships, self-regulatory organizations, Government contractors for example? Are there problems 

of governmental organization or interagency coordination that impede our country’s ability to compete in world markets. And, Mr. 

Chairman, you mentioned a number of items that I think would 

also warrant ACUS style analysis. 

I think that ACUS’s historic structure, which was a mix of Government officials, leading academics, lawyers from the private and 

public interest bars, plus a range of non-lawyer experts such as 

public administrators, remains the best blend of talent to accomplish ACUS’s mission. The key ingredient for any revitalization, 

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stitution that is both objective and impartial and seen as objective 

and impartial. 

ACUS’s operation and budget were tiny in absolute terms when it comes to Government entities. It had 18 employees and $1.8 million budget when it was eliminated in 1995. Perhaps more important, it was extremely small relative to its mission. It was the only 

Federal agency with exclusive responsibility for improving administrative justice and Federal programs that at the time affected 

about $500 million in gross domestic product and involved agencies 

and departments that adjudicated more cases than the Federal 

courts. In fact, the money saved by both the Government and the 

private sector by ACUS’s seminal work in alternative dispute resolution alone far exceeds its annual budget. Those are, I think, 

ACUS’s real value for money. 

My prepared statement offered some modest organizational and 

technical suggestions regarding the revitalization of ACUS. But 

more important than any precise modifications that Congress 

might have, being desirable modifications over the past 9 years, I 

believe that there has to be a political recognition that it is worth 

spending a tiny amount of taxpayers’ money to obtain genuinely 

independent, nonpartisan, expert analysis of issues bearing on the 

governmental process with a view toward improving the fairness 

and efficiency of that process. 

As Justice Breyer pointed out last month, other countries with 

significant administrative systems—Britain, France, Australia, for 

example—have permanent oversight bodies. In fact, the Canadian 

Parliament, which abolished its advisory review body in 1992 during a period of retrenchment and budget cutting that was not terribly different from what went on in this country, quickly realized 

that it had made a mistake and reestablished its commission only 

4 years later. Our citizens, it seems to me, Mr. Chairman, deserve 

no less. 

I want to applaud the work of this Committee and staff in holding these hearings, and I hope they will be the first step leading 

to the reauthorization and funding of the Administrative Conference. I will try as best I can to answer any questions that you 

may have. 

[The prepared statement of Mr. Edles follows:]

PREPARED STATEMENT OF GARY J. EDLES

Mr. Chairman, members of the subcommittee. I want to applaud the subcommittee’s decision to hold theses hearings and I hope that they will lead to the long-overdue reauthorization and funding of the Administrative Conference of the United 

States, or ACUS. I served as ACUS’ General Counsel from 1987 to 1995, and urged 

its re-creation in a 1998 law review article, The Continuing Need for an Administrative Conference, 50 Admin. L. Rev. 101 (1998). I thoroughly endorse the thoughtful 

comments offered at the subcommittee’s hearing last month by Justices Scalia and 

Breyer, and the observations of the American Bar Association, setting out the reasons for—indeed, the need for—ACUS’ re-establishment at this time. 

THE NEED FOR AN ADMINISTRATIVE CONFERENCE

I strongly believe there is a need for the reauthorization of an Administrative 

Conference and that ACUS is ‘‘very good value for money.’’ Despite the presence of 

a written Constitution and a government-wide procedural statute (the APA), the 

federal administrative process, by design and evolution, is characterized by a considerable degree of procedural flexibility and agency discretion. Given that flexibility 

and discretion, some form of independent oversight entity is needed to help ensure 

65

that the process is effective, accountable, and, perhaps most important, fair to our 

citizens. ACUS successfully played a key oversight role in the past and I believe 

such an institution is still needed. 

As a practical matter, there are no other entities that can play the unique role 

that ACUS played. The courts are ill suited to perform a meaningful role as supervisor of the details of agency operations. Very few agency actions, even those that 

significantly affect members of the public, turn into litigated cases, in part because 

they are not amenable to judicial remedy or the average citizen simply can’t afford 

the cost of litigation. So, many agency procedures and practices don’t find their way 

into the courts. And the best a court can do in any event is to correct a problem 

in the case before it. The courts are simply not set up to be pro-active in proposing 

systematic change. 

Likewise, Congress cannot be expected to oversee the minutiae of agency operations and procedures. Congressional oversight of administrative agencies has always been episodic. Congress, quite frankly, has many more fundamental issues on 

its plate. For example, Title II of Public Law 104–121, the Small Business Regulatory Enforcement Fairness Act of 1996, gave Congress an opportunity to review 

agency regulations before they became effective and enact legislation to prevent 

them from going into effect. But the provision is limited to rulemaking initiatives, 

which make up only a portion of overall agency activity. Moreover, agencies place 

several thousand regulatory actions in the Federal Register annually, but Congress 

has historically managed to enact only 150–200 bills each year. As a consequence, 

to my knowledge, Congress has used its rulemaking review power only once since 

the statute was enacted. Congess, in short, rarely involves itself in the type of procedural particulars that ACUS regularly examined. 

It is doubtful that centralized review by the President, or even his senior deputies, 

can effectively oversee the finer points of the regulatory process. Although presidential review is theoretically possible, my colleague, Professor Thomas Sargentich, 

has suggested several factors that necessarily limit the President’s power as a practical matter: the multitude of issues flowing through agencies daily, the severely 

limited resources of executive oversight, and the variety of control relationships that 

exist in the administrative system. 

Nor can agencies be expected to devote their time and energy to critical self-examination. In an era when resources are scarce and must be channeled into accomplishing the numerous tasks assigned to them by Congress, agencies can devote very 

little time to reflection unless pressed to do so by outside political pressure. 

Individual scholars or ad hoc advisory groups can study agency practices and procedures to some degree. Indeed, the Section of Administrative Law and Regulatory 

Practice of the American Bar Association has done an excellent job of picking up 

some of the slack after ACUS was abolished. But the details of day-to-day administrative procedure are often arcane and typically agency-specific, so they rarely attract the attention of academic scholars, who prefer to devote their time and energy 

to doctrinal or policy issues that have a larger audience. Moreover, neither academic 

researchers nor ad hoc advisory groups have the time or incentive to pursue research or recommendations to the implementation phase, particularly where such 

phase can last a decade or more. 

A permanent, independent body such as ACUS also melds the expertise and perspectives of the government agencies, the private sector, including, importantly, the 

practicing bar, and members of the judiciary and the academic community. The participation of senior government officials—especially career civil servants—brings a 

unique form of expertise and experience. Agency officials are typically thoroughly 

familiar with the intimate workings of their own agencies. That expertise is essential to effective procedural reform. But agency officials can also have a stake in existing procedures that they administer or may even have created. And I have always 

found it surprising how unfamiliar agency officials often are with the experience of 

sister agencies. So sensible oversight requires the bringing together of expertise 

from numerous agencies across the government. 

The participation of non-government members is crucial. It helps ensure that recommendations reflect the problems and perspectives of those who must actually deal 

with government and have experienced the frustration of trying to work their way 

through the bureaucracy or perceive government procedures as unfair. Judges lend 

their perspectives as generalist experts in fair procedure and reviewers who examine administrative action when it is challenged in court. Participation by members 

of the academic community helps guarantee that studies are thorough and doctrinal 

elements are not ignored. 

Finally, a permanent institution allows a career staff to develop expertise in the 

areas of administrative law and government organization and process and devote 

time and resources to implementing recommendations. Judging from the number of 

66

telephone calls or e-mails I received at my American University office after ACUS 

was abolished, the need for some form of institutional memory is critical. 

Over 40 years ago, federal Court of Appeals Judge E. Barrett Prettyman, reporting on behalf of the temporary Administrative Conferences created by President 

Kennedy, summarized ACUS’ value as follows:

The heavy pressures of Government to discharge immediate responsibilities 

may at times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity, and the demands of the daily job may lessen the will to achieve 

change.

The committees of Congress, suitably concerned as they are with matters of 

substantive policy, can only sporadically occupy themselves with the details of 

methodological and organizational problems. . . . Nor do we think that hope of 

major accomplishment lies in occasional studies by groups external to the Government. . . . The current need is for continuous attention to somewhat technical problems, rather than for public enlightenment concerning a few dark 

areas that cry for dramatic reforms. A discontinuous commission . . . is unlikely to have great impact upon the day-to-day functioning of the Federal agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy 

(Dec. 17, 1962), Legislative History of ACUS (on file, ACUS Collection, American University Washington College of Law Library),

Those reasons help explain why other countries with significant administrative 

systems have permanent oversight bodies. For example, Britain has its Council of 

Tribunals that continuously monitors the work of that country’s numerous tribunals 

and makes recommendations for procedural improvement. Much like ACUS, its detailed work is its greatest strength. The Australian Administrative Review Council 

has responsibility for giving advice on the workings of the administrative review 

system in that country. Canada too has a Law Commission that advises its Parliament on how to improve and modernize Canadian law. In fact, in 1992, a new 

Canadian government introduced a budget package designed to reduce both the federal budget and the deficit. It proposed abolition, privatization or consolidation of 

46 separate agencies or programs. The Law Commission of Canada was one of the 

agencies abolished. The Commission was smaller than ACUS, but its jurisdiction 

was far broader, extending to ‘‘the statutes and other laws comprising the laws of 

Canada.’’ It employed the same general methodology as ACUS—systematic review 

and oversight of Canadian legal matters and the submission of recommendations for 

improvement to Parliament and the agencies and departments of government. The 

government quickly realized that abolishing the Commission had been ‘‘penny-wise 

and pound foolish’’ and the Canadian Parliament re-established the Commission, in 

a somewhat modified form, only 4 years later. 

NEED FOR INDEPENDENCE

The need for a genuinely nonpartisan and independent advisory body has been 

recognized throughout ACUS’ history. A Republican President, Dwight Eisenhower, 

established the first Administrative Conference on a temporary basis in 1953. A 

Democratic President, John Kennedy, created a second temporary Conference in 

1961. Apart from their numerous proposals for specific improvements in agency procedures, both temporary groups strongly endorsed the need for a permanent institution. Congress agreed, and created what was designed to be a permanent institution 

in 1964 with passage of the Administrative Conference Act. 

A separate, independent institution serves to maintain both objectivity and the 

appearance of objectivity. From its earliest days, ACUS had a bylaw providing that 

each member participated ‘‘according to his own views and not necessarily as a representative of any agency or other group or organization.’’ It is doubtful, for example, that federal judges would have, or could have, participated in an institution 

that was not genuinely independent of an incumbent political administration. So 

ACUS would have lost the valuable insights of numerous federal judges, such as 

Justice Breyer, if it were seen as closely allied to the President, irrespective of 

which party was in power. Although the ACUS Chairman and staff were careful not 

to lock horns unnecessarily with an incumbent administration, ACUS’ recommendations at times parted company with the official view of the President or particular 

departments or agencies of government. I think that committees of Congress especially appreciated that when ACUS provided its advice, it was not doing so simply 

as a spokesperson for a current administration. 

As part of its independence, Congress needs to ensure that ACUS has some funds 

for independent research. Over the years, ACUS affected major alterations in the 

67

federal administrative process. It recognized the need to develop fundamental 

changes in the process of the entire government. But it also examined the need for 

improvements in the organization and procedures of individual agencies. Its studies 

almost always focused on empirical inquiry, although they did not ignore doctrinal 

elements. During the period when I served as ACUS’ General Counsel, from 1987 

to 1995, agency-specific studies were conducted at the request of several agencies, 

often with the financial support of the requesting agency. Congress encouraged this 

approach in an effort to make ACUS more self-sustaining. Although ACUS was always receptive to conducting studies on behalf of agencies interested in self-examination, a number of us were concerned about excessive reliance on funds from other 

agencies to sponsor projects. I would emphasize that no agency was ever able to influence ACUS’ recommendations despite having requested or underwritten a study. 

Still, I believe that excessive reliance on agency funds can undermine public confidence in the objectivity of ACUS’ research. Equally important, too much reliance 

on agency funding introduces instability in the research program because areas that 

need examination may not get it for lack of outside funding and a constant flow of 

funds from other agencies can never be assured. In my judgment, some independent 

research budget is essential. 

STRUCTURE AND MISSION FOR A REAUTHORIZED ACUS

Any revitalized ACUS should remain essentially advisory. From time to time during ACUS’ history, elements within ACUS or its supporters urged that it be given 

authority to compel, rather than merely recommend, action by agencies. In my view, 

that’s a bad idea. Such expansion of its authority will compromise ACUS’ ability to 

achieve actual reform. Much of its success stemmed from its ability to enlist an 

agency’s support even when that agency was the subject of study. Numerous agencies actively solicited ACUS’ help. And, in most cases, agencies adopted ACUS’ recommendations. Any change from advisory to mandatory powers would alter ACUS’

relationship with its member agencies from that of an impartial adviser to that of 

a policeman or potential adversary and compromise its ultimate ability to effect 

change. Nonetheless, I do believe that ACUS should undertake to bring to the attention of Congress or the President whether, and to what extent, its recommendations 

have been adopted. Providing Congress and the President with impartial advice, including a status report on agency implementation of ACUS recommendations, is not 

inconsistent with ACUS’ advisory mission. 

Given the changing complexion of regulatory problems, and the recognized public 

dissatisfaction with government regulation, but the apparent lack of consensus on 

how to reform it, I think a revitalized ACUS should examine whether there are institutional elements that bear on regulatory failure. During my tenure, ACUS had 

economists among its members, such as OMB Director James Miller, and I think 

a revitalized ACUS would benefit from a membership that also included public administrators. 

A revived ACUS can be smaller than the 101-member Assembly. Such a large 

group provided broad representation of interests but, at times, frustrated efficient 

operation. As with any organization, not all members were equally active. Senior political officials from the government, in particular, often had schedule conflicts that 

compromised their participation. These scheduling conflicts also intermittently led 

to quorum problems. So the work typically fell to a smaller group of active members. 

As long as the balance between government and private interests is retained, and 

all cabinet departments and a fair representation of other agencies are included, 

fewer than 101 individuals could accomplish ACUS’ statutory mission. 

Reform of entrenched administrative practices and attacking bureaucratic inertia 

takes time and perseverance. One of ACUS’ strengths was its ability to see its ideas 

through from concept, to design, to implementation. So, in reauthorizing ACUS, 

Congress needs to ensure an ongoing role for a permanent, career staff. 

However, the permanent staff might be a bit smaller than the 24 employees that 

made up the Office of the Chairman during the high water mark of ACUS’ activities. While a small corps of permanent employees is essential, there is no reason 

why employees temporarily assigned from other agencies could not supplement the 

permanent staff. The existing statute permits this arrangement and, over the years, 

ACUS had an active ‘‘visiting executive’’ program that allowed a number of highly 

talented government employees to join the ACUS staff for temporary periods while 

remaining on their home agency’s payroll. A new ACUS could also augment its operations without an additional outlay of funds through an affiliation with a law school 

or school of public administration, whose students and faculty could assist in, or 

supplement, the conduct of research, the coordination of peer review for oversight 

of projects, and the drafting and implementation of recommendations. 

68

ACUS’ budget was tiny by governmental standards—only $1.8 million when it 

was eliminated in 1995. Even ACUS’ critics acknowledged that its abolition had no 

meaningful effect on the overall federal budget. Perhaps more importantly, ACUS’

budget was also small relative to its mission—it was the only agency with exclusive 

responsibility for improving administrative justice in federal programs that, at the 

time, affected about $500 billion of the gross domestic product and involved government departments and agencies that adjudicated more cases that the federal courts. 

Indeed, the amount of money saved by both the government and the private sector 

from ACUS’ seminal work in the area of alternative dispute resolution, standing 

alone, far exceeded its annual budget. Given inflation since 1995, I think that ACUS 

could operate successfully at the outset on a modest budget in the $2–3 million 

range. 

In summary, though, I think that the precise size and organizational structure of 

a new ACUS is much less significant than the political recognition that some entity 

needs to be available to police the inner recesses of the administrative process, and 

that ACUS is the best available option. It provides, as Justice Scalia pointed out, 

‘‘a unique combination of scholarship and practical know-how, of private-sector insights and career-government expertise.’’ Its essential purpose today would be the 

same as when it was originally created—to identify the causes of government inefficiency, ineffectiveness, delay and unfairness, recommend ways to change things, and 

pursue those recommendations to fruition. 

EMOLUMENTS CLAUSE ISSUE

As part of the reauthorization process, I urge the committee to clarify the uncertainty that exists over a rather technical issue, namely the applicability of the 

Emoluments Clause of the U.S. Constitution to non-government members of ACUS. 

The uncertainty arises because of a 1993 opinion by the Office of Legal Counsel, Department of Justice (OLC), and ACUS’ inability to have the matter resolved before 

it went out of business in 1995. Congress should make clear that, in its view, ACUS’

members from outside the federal government who serve part-time, are unpaid for 

their services, and are explicitly required by the statute to be chosen for their expertise do not, simply because of such service, hold an ‘‘Office of Profit or Trust’’ within 

the meaning of the Emoluments Clause. Rather, they should be treated like members of any other federal advisory committee. Absent resolution of the issue by Congress, the status of ACUS’ non-government members will remain in doubt and the 

ability of a revitalized ACUS to attract the most distinguished individuals from the 

private sector will be seriously compromised. 

As you may know, the Emoluments Clause provides that ‘‘no Person holding any 

Office of Profit or Trust . . . shall, without the Consent of the Congress, accept . . . 

any present, Emolument, Office, or Title, of any kind whatever, from any King, 

Prince, or foreign State.’’ U.S. Const., art. I § 9 cl. 8. The Constitutional Convention 

included the Clause in order to shield foreign ministers and other officers of the 

United States government from undue influence and corruption by foreign governments. However, in a 1991 opinion, OLC substantially expanded the historic understanding of the Clause when it concluded that even ‘‘[f]ederal advisory committee 

members hold offices of profit or trust within the meaning of the Emoluments 

Clause.’’ Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees, 15 Op. O.L.C. 65 (1991). The 1991 opinion, although presumably affecting a 

thousand or more advisory committees at scores of federal agencies, went essentially 

unnoticed at the time. 

On October 28, 1993, OLC issued a further opinion addressing two rather esoteric 

Emoluments Clause questions specifically affecting ACUS members. First, it concluded that ACUS’ academic members, such as law professors, are prohibited by the 

Emoluments Clause from serving on ACUS if, absent Congress’ consent, they accept 

any payment from a commercial entity owned or controlled by a foreign government, 

including universities or law schools. That ruling had the effect of preventing any 

academic from serving as an ACUS member if he or she at any time undertook any 

employment relationship with a foreign government-owned academic institution—

even a one-semester visiting professorship or a single compensated lecture. Second, 

OLC determined that an ‘‘Emolument’’ within the meaning of the Clause included 

any distribution of partnership shares that includes some proportionate share of the 

revenues generated from the firm’s foreign government clients even though the 

ACUS members themselves did not personally represent any foreign clients and had 

no dealings with them. Applicability of the Emoluments Clause to Non-Government 

Members of ACUS, 17 Op. O.L.C. 114 (1993). What we discovered at the time was 

that, at most law firms, it is impossible to segregate partnership earnings to exclude 

from one partner’s share some amount—often miniscule—associated with another 

69

partner’s foreign government clients. So, absent Congress’ consent, lawyers in large 

law firms whose partners had foreign clients could no longer serve on any advisory 

committee. Importantly, in reaching its decision, OLC did not reconsider its fundamental 1991 view that advisory committee members, such as non-government ACUS 

members, occupy an ‘‘Office of . . . Trust’’ within the meaning of the Emoluments 

Clause. Some of ACUS’ members resigned in light of OLC’s decision. 

The matter has been partially—but, unfortunately, not fully—resolved in the 

years since 1993 because OLC has retreated from its original determination. Immediately on the heels of its October, 1993 ACUS opinion, OLC, at the behest of the 

Department of State, reconsidered and revised its underlying view regarding the applicability of the Emoluments Clause to unpaid members of advisory committees. On 

March 1, 1994, in an unpublished letter to State Department Legal Adviser Conrad 

Harper from OLC Assistant Attorney General Walter Dellinger, subsequently cited 

in Applicability of 18 U.S.C. § 219 to Representative Members of Federal Advisory 

Committees, 1999 OLC LEXIS 11 (1999), OLC determined that ‘‘not every member 

of an advisory committee necessarily occupies an ‘Office of Profit or Trust’ under the 

[Emoluments] Clause.’’ Later in 1994, OLC modified its view regarding advisory 

committee members from the academic community. It determined that while foreign 

public institutions, such as universities, were presumptively instrumentalities of a 

foreign state for Emoluments Clause purposes, individuals did not come within the 

Emoluments Clause if the foreign academic institutions with which they had a relationship are independent of the foreign government when making employment decisions. See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13 (1994). In 1996, OLC publicly rejected what it now characterized as its previous ‘‘sweeping and unqualified 

view’’ that federal advisory committee members hold offices of profit or trust and 

were thereby subject to the Emoluments Clause. It went on to conclude that members of the State Department’s Advisory Committee on International Economic Policy do not occupy an ‘‘Office of Profit or Trust’’ within the meaning of the Emoluments Clause. See Letter Opinion for the Deputy Legal Advisor, Department of State, 

The Advisory Committee on International Economic Policy, 1996 OLC LEXIS 63 

(1996). 

Unfortunately, the 1994 unpublished letter to Conrad Harper at the Department 

of State has not, to my knowledge at least, been made public. When I learned of 

its existence, long after ACUS had been abolished, I requested from OLC and the 

Department of State both a copy of the letter and any underlying documents from 

the State Department to OLC that might help illuminate OLC’s new rationale. Because I was now a member of the academic community, I had to make my request 

pursuant to the Freedom of Information Act. My FOIA requests were denied by both 

agencies. So the bases for OLC’s 1994 change of heart, and the factors that influenced it, are, as best I can tell, still not publicly known. 

OLC did issue a brief, two paragraph, published opinion on the subject in 1996. 

However, in that opinion OLC simply pointed to various factors that took members 

of the State Department’s Advisory Committee on International Economic Policy out 

from under the Emoluments Clause. OLC pointed out that the members of that advisory committee met only occasionally, served without compensation, took no oath, 

and did not have access to classified information. OLC further indicated that the 

State Department committee was purely advisory, was not a creature of statute, and 

discharged no substantive statutory responsibilities. Beyond noting these factors, 

however, OLC failed to set out in any principled way which of these seemingly key 

characteristics, or combination of them, would render other advisory committee 

members subject to, or not subject to, the Emoluments Clause. For example, is the 

mere fact that Congress created the advisory committee by statute sufficient, by 

itself, to render advisory committee members subject to the Clause? If so, why is 

that so, and are the other factors thus either irrelevant or surplusage insofar as 

OLC’s analysis is concerned? In the circumstances, OLC’s view on the applicability 

of the Emoluments Clause to prospective ACUS members cannot be determined. 

Nonetheless, if rigidly or individually applied, the fact that the Conference is created by statute, that the membership as a whole is technically responsible for the 

Conference’s activities, and that, through its Chairman and permanent career staff, 

it performs statutory duties other than making recommendations, could be seen to 

subject the non-government members to the Emoluments Clause. So Congress needs 

to declare its intent that ACUS’ non-government members be treated in the same 

way as members of other advisory committees and indicate that it is aware of the 

OLC opinion but does not believe that the Emoluments Clause should be a barrier 

to service by ACUS’ academic members or individuals in large law firms as long as 

the non-government members do not, themselves, represent foreign governments. 

This is plainly within Congress’ constitutional capacity to do. 

70

I would point out that, apart from ACUS’ statutory creation, none of the other 

factors noted as relevant in OLC’s 1996 opinion apply to non-government ACUS 

members. Non-government members meet only occasionally, serve without compensation, do not have access to classified information, and are not required to take 

an oath. They perform purely an advisory role akin to that performed by advisory 

committee members throughout government. The job of the Assembly of the Conference, made up of its entire membership, is to study issues of administrative procedure and adopt recommendations for improvement. See 5 U.S.C. § 595(a), setting 

out the Assembly’s statutory responsibilities. Although the Assembly technically ‘‘has ultimate authority over all activities of the Conference,’’ its functions are necessarily confined by the specific administrative and executive powers conferred expressly on the Chairman and the Council in 5 U.S.C. § 595(b) and (c). And, as a 

practical matter, during my term of office at least, the Assembly and its non-government members (apart from the 5 non-government members of the Council) did not 

perform any functions that were not related to their advisory responsibilities. In 

short, the Assembly, meeting twice a year in Plenary Session, and through its committees on an irregular basis at other times, was entirely a recommending or advisory body. 

ACUS’ statutory footing or its other statutory responsibilities do not alter the advisory role of its non-government members. Although ACUS is both a statutorily 

created federal agency and an advisory committee, its non-government members 

participate only in its advisory functions. The statute created the position of Conference Chairman as its chief executive. He or she is a full-time federal employee 

who, along with the professional staff, conducts ACUS’ day-to-day activities. The 

Chairman and staff ensure implementation of ACUS recommendations and the accomplishment of any statutory assignments given to ACUS by Congress. They serve 

as a clearinghouse for government agencies on administrative process issues. In 

other words, to the extent that ACUS as an agency performs tasks that might be 

considered to be non-advisory, these tasks fall within the purview of the Chairman 

and staff, who, as federal officials, are clearly subject to the Emoluments Clause. 

ACUS’ 40-year history testifies to the fact that Congress has always known 

about—and, indeed, has endorsed and statutorily required—the appointment of distinguished law professors, lawyers in private practice, and other experts as non-government members. There were two temporary Conferences, neither of which was established by statute—the first created by President Eisenhower in 1953, the second 

established by President Kennedy in 1961. They were made up of law professors, 

lawyers in private practice, and other experts, with a federal judge as chairman. 

Those Temporary Conferences were explicitly the model for the statutorily established Conference created by Congress in the Administrative Conference Act of 

1964, P.L. 88–499. Indeed, in section 593(b)(6) of Title 5 Congress expressly required 

that non-government members shall be chosen to ‘‘provide broad representation of 

the views of private citizens and utilize diverse experience. The members shall be 

members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to Federal administrative procedure.’’ Establishment of ACUS by statute worked no 

change in the basic advisory role of its non-government members. An Administrative Conference rooted in a statute, as recommended by both temporary Conferences, was intended solely to give the advisory body permanent status. In my 

opinion, if anything, ACUS’ statutory underpinning, and Congress’ express articulation of membership qualifications, manifests de facto congressional consent to any 

Emoluments Clause issue that a statutory foundation, standing alone, might be 

seen to pose. 

But I recognize that the 1993 OLC opinion will complicate and compromise ACUS’

ability to attract the most distinguished individuals from the private sector. So Congress should eliminate any ambiguity by amending the statute as part of the reauthorization process. There is no drawback in doing so. The Assembly, and its committees, have always operated, and must continue to operate, pursuant to the openness requirements of the Federal Advisory Committee Act, 5 U.S.C. Appendix, as 

do other federal advisory committees. Non-government members must comply with 

pertinent Office of Government Ethics disclosure requirements. So I recommend 

that Congress make two statutory modifications. First, it should delete the second 

sentence of section 595 that confers on the Assembly ‘‘ultimate authority over all 

activities of the Conference.’’ This will eliminate any technical argument that the 

Assembly plays a role in the administrative operation of the agency. Second, it 

should add a final sentence to section 593(c) to provide explicitly that ‘‘Members of 

the Conference from outside the Federal Government do not, by virtue of their appointment, hold an ‘‘Office of Profit or Trust’’ within the meaning of Article I, § 9, 

cl. 8 of the U.S. Constitution.’’ At a minimum, Congress should make clear in the 

71

legislative history that, in reauthorizing ACUS, it fully anticipates, and consents to, 

membership by individuals who are members of the practicing Bar, scholars in the 

field of administrative law or government, or other experts in federal administrative 

procedure irrespective of any highly attenuated relationship with a foreign entity of 

the type OLC found to implicate the Emoluments Clause. 

I appreciate the opportunity to participate in the subcommittee’s hearings and I 

sincerely hope that they are the beginning of a process that leads to the reauthorization, re-creation, and funding of the Administrative Conference.

Mr. CANNON. Thank you, Professor. 

Ms. Payton, would you—we have only one microphone but it 

works, which is nice. 

STATEMENT OF PROFESSOR SALLYANNE PAYTON, WILLIAM W. 

COOK PROFESSOR OF LAW, THE UNIVERSITY OF MICHIGAN 

LAW SCHOOL, ON BEHALF OF NATIONAL ACADEMY OF PUBLIC ADMINISTRATION 

Ms. PAYTON. I will try not to say anything too startling. 

Mr. Chairman, Members of the Committee, thank you for inviting me to testify on the reauthorization of the Administrative Conference of the United States. I am the Cook Professor of Law at the 

University of Michigan Law School. As you know, I served on the 

Administrative Conference continuously for five presidential administrations. I am a past Chair of the Administrative Law Section 

of the American Association of Law Schools, and since 1998 I have 

been a Fellow of the National Academy of Public Administration 

and a member of the Standing Panel on Executive Organization 

and Management, which I will refer to as EOM panel. 

I currently serve as the Director of the Academy. The Academy 

itself does not take positions on pending legislation. That function 

is located in the standing panels, such as the EOM panel, and I 

am here on behalf of the EOM panel. I am expressing today the 

management view, if you will, of the Administrative Conference. I 

have coordinated my testimony with Sally Katzen, who has contributed a statement for the record, and I concur in her views. Since 

she cannot be here in person today she has authorized me to speak 

to any questions regarding her statement. 

My testimony reflects also the strong views of the EOM panel, 

which recently met and after deliberation voted to express its 

strong support of restoring the Administrative Conference. The 

EOM panel includes many present and former senior managers of 

the Government. I must say that this is the first time I have ever 

known my colleagues on the EOM panel to express enthusiasm for 

lawyers, and so the position of the panel should be taken as a 

measure of this wide esteem in which ACUS is held. 

You have my written statement. In these oral remarks the principal point I want to make is that good administrative process and 

procedure are part of the critical infrastructure of Government. 

Like other infrastructure, they are likely to be taken for granted 

and neglected until problems build into crises or something major 

goes wrong. In the Government of the United States, only ACUS 

ever had the mission of engaging in constant correction and improvement of the procedure and process infrastructure. 

ACUS was what we call a community of practice. It was a community of practice of administrative law professionals. Its members 

spanned all the agencies, administrations and different political 

72

parties. It included both academicians and practitioners which 

fused public and private. ACUS was led from the top. The roster 

of its public members and consultants was a virtual Who’s Who of 

administrative law. 

Moreover, these luminaries worked hard. ACUS projects for the 

most part were difficult, technical and esoteric, some would say 

boring, the ordinary work of tending after the administrative process. 

Now many of the lawyers who are supporting restoration of 

ACUS have spoken warmly of the bipartisan and collegiality of the 

Conference. From a management perspective, the attractiveness of 

ACUS to the professional community meant that prominent and 

distinguished people were willing for the sake of that collegiality to 

focus on operational issues that would otherwise never have 

claimed their attention. The Government benefited enormously by 

assembling and hosting ACUS. It stimulated the members of the 

Conference to do the work of the Government. 

Now, I don’t mean that ACUS was perfect, only that it was, as 

we now know, irreplaceable. The EOM panel therefore encourages 

restoring it with its virtues intact. 

Now, our analysis of the relationship between ACUS’s structure 

and performance leads us to urge caution with respect to changing 

in any significant respect its role and responsibilities. We recognize 

that the world has changed since 1994 and so have the concerns 

of administrative lawyers, as Professor Edles just pointed out. We 

have moved off the old agenda on to a new agenda, but it is still 

the agenda of administrative law. We believe that the task of deciding how to retain the old virtues of ACUS, while meeting new challenges, can safely and appropriately be entrusted to the administrative law community, itself operating under its original and quite 

flexible ACUS charter. 

The EOM panel therefore supports restoration of ACUS under its 

original charter. I thank the Subcommittee for reexamining this 

issue. You are doing a great service. 

[The prepared statement of Ms. Payton follows:]

PREPARED STATEMENT OF SALLYANNE PAYTON

Mr. Chairman and Members of the Subcommittee: 

I greatly appreciate your invitation to testify in favor of the reauthorization of the 

Administrative Conference of the United States, known as ACUS or ‘‘the Conference.’’ I am the William W. Cook Professor of Law at the University of Michigan 

Law School. I served on the Conference continuously through five presidential administrations as a Public Member and then a Senior Fellow, beginning in 1978 and 

ending in 1995 when the Conference was disbanded. In 2001–2002 I was Chair of 

the American Association of Law Schools Section on Administrative Law. Since 1998 

I have been a Fellow of the National Academy of Public Administration and a member of its Standing Panel on Executive Organization and Management (EOM Standing Panel). I currently serve as a Director of the Academy. 

My testimony today has been coordinated with that of Sally Katzen, and I concur 

in her views. Since she cannot be here in person today she has authorized me to 

speak to any questions regarding her testimony. My testimony also reflects the 

views of the EOM Standing Panel, which recently met and deliberated on the question of restoring the Administrative Conference. The panel voted to express its 

strong view in support of reauthorization. I will focus these remarks on the reasons 

for this solid endorsement. 

One of the challenges of managing a government as diverse in mission and organization as is the Government of the United States is to locate responsibility for common functions where they can be performed most effectively at the appropriate 

73

1This observation was a principal motivation for the creation of ACUS as a permanent body. 

Here is what Judge E. Barrett Prettyman wrote to President Kennedy after having led two committees studying the possibility of creating the Conference:

The heavy pressures on Government to discharge immediate responsibilities may at 

times rob administrators of the time needed for consideration of procedures. Imperfections in method . . . may acquire the protective coloration of familiarity; and the demands of the daily job may lessen the will to achieve change. . . . The committees of 

Congress, suitably concerned as they are with matters of substantive policy, can only 

sporadically occupy themselves with the details of methodological and organizational 

problems . . . Nor do we think that hope of major accomplishment lies in occasional 

studies by groups external to the Government. . . . The current need is for continuous 

attention to somewhat technical problems, rather than for public enlightenment concerning a few dark areas that cry for dramatic reforms. A discontinuous commission 

. . . is unlikely to have great impact upon the day-to-day functioning of the Federal 

agencies. Letter from Judge E. Barrett Prettyman to President John F. Kennedy (Dec. 

17, 1962) (urging establishment of permanent Administrative Conference) (on file with 

ACUS), cited in Testimony of Sally Katzen before the House Committee on the Judiciary 

Subcommittee on Administrative Law and Governmental Relations in Support of the Reauthorization of the Administrative Conference of the United States, April 21, 1994, re- printed in 8 ADMIN. L.J. AM. U. 649, 653 (1994) (emphasis supplied). 2 Id. at 652.

scale. Administrative processes and procedures are ubiquitous in government, but 

being matters of technique rather than substance they tend to claim a smaller share 

of the attention of agencies and the Congress than do more concrete and pressing 

concerns.1 They are not for that reason unimportant. It is through administrative 

processes and procedures that most people interact with government. These processes and procedures are part of the essential infrastructure of government, and 

continuous attention must be paid to them. The ability of government to conduct 

itself appropriately, and to monitor and improve its procedures and processes, is 

therefore a critical piece of organizational competence. It is true that the judiciary 

has power to review agency action at the behest of an appropriate party with a legally-protected interest, but judicial review is available for only the thinnest sliver 

of the work of government, and in any event the mission of the courts is to decide 

disputes and to focus on larger-scale institutional relationships, not to improve administrative systems.

There is thus a void, which the Administrative Conference was created to fill. The 

Conference was a remarkable institution. In the current argot of organizational theory, it would be called a ‘‘community of practice.’’ In her 1994 testimony in support 

of the reauthorization of ACUS, Sally Katzen described the Conference as it then 

existed:

By statutory design, a majority of the Administrative Conference’s members 

represent government departments and agencies. All major departments and 

agencies are represented and each department or agency chooses its own representative. The caliber of the individuals who represent these agencies attests 

to the importance that the agencies, as well as the Administration, assign to 

the Administrative Conference’s functions. . . . The government officials join 

forces with distinguished private citizens, called ‘‘public members’’—law professors, public interest lawyers, private practitioners, economists, public administrators—who volunteer their time and talent because they share the view that 

this unique public-private partnership significantly improves the way government regulates its citizens or delivers services to them. The Administrative 

Conference Act requires that the Administrative Conference chairman select 

members from the private sector who are ‘‘members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to federal administrative procedure.’’ . . . The Administrative Conference ha[d]s a long-standing tradition of 

private sector membership that crosses party and philosophical lines...2

I am sure that all of the witnesses before this Committee who have been on the 

private side of this public-private partnership would attest that serving as a Public 

Member of the Conference was challenging, the work being frequently complicated, 

esoteric and technical. Nonetheless, Public Members of startlingly distinguished professional standing viewed participation in the Conference as a high calling and 

worked their way devotedly, largely at their own personal expense, through procedural and process issues of which no notice was likely to be taken outside of the 

circle of administrative lawyers, and for which they would receive no credit. 

This willingness on the part of the leaders of the administrative law community 

to contribute personally to the work of ACUS was an expression of their commitment to improving the important below-the-radar processes that are critical to the 

74

3 Administrative Conference of the United States, Recommendation 91–3: The Social Security 

Representative Payee Program, 1991 ACUS 17. 4 5 U.S.C. § 594 provides:

To carry out the purpose of this subchapter, the Administrative Conference of the United States 

may (1) study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs....

5 U.S.C. § 592 (3) defines ‘‘administrative procedure:’’

‘‘administrative procedure’’ means procedure used in carrying out an administrative program 

and is to be broadly construed to include any aspect of agency organization, procedure, or management which may affect the equitable consideration of public and private interests, the fairness of agency decisions, the speed of agency action, and the relationship of operating methods 

to later judicial review, but does not include the scope of agency responsibility as established 

by law or matters of substantive policy committed by law to agency discretion.

well-being of those who have to depend on or do business with government. I think, 

for example, of the work that ACUS did on the process for designating ‘‘representative payees’’ for Social Security recipients who cannot care for themselves but who 

have not been declared legally incompetent.3 What was unique about the Conference 

was that highly-compensated lawyers, leading academicians who specialized in constitutional theory, and sitting federal judges who turned out to be future Supreme 

Court Justices, among others, believed that making sure that processes of this sort 

were tailored correctly was worth their time, because these processes mattered to 

the public. 

Even partisan competition was subordinated to the members’ determination to 

achieve good administrative principle and practice. The Conference’s bipartisanship 

was so pervasive that it functioned as nonpartisanship, in the tradition of ‘‘good government.’’

Like any organized community of practice, the Conference maintained an informal 

institutional memory and a repository of useful information that was made available 

to those who sought its advice, whether or not they were located in the Executive 

Branch. It is worth remembering in this context that at any given time a substantial fraction of the people who have responsibility for designing, conducting or reforming administrative processes and procedures are new to their jobs, or have 

never had occasion to think about the type of issues confronting them. There are 

new Hill staffers and new independent agency commissioners, who need a source 

of trustworthy information and advice. Turnover among agency officials produces a 

constant inflow of people who need to be informed about their responsibilities. Best 

practices need to be identified and information about them disseminated. No individual agency is in a position to maintain a comprehensive information base on federal administrative process and procedure; nor can any administrative or other operating agency always take on the role of thinking conceptually about its own work 

in the context of general principles of administrative process. Responsibility for 

these functions must be centralized; it must be prestigious; and it must be impartial. The Conference was all of these things. Some of the greatest praise for ACUS 

has come from Members of Congress who had occasion to call on it for information 

and advice. Many members of the EOM Standing Panel have had similar experiences, and view ACUS as having been a highly useful organization. 

The case for restoring ACUS thus seems overwhelming to my colleagues on the 

EOM Standing Panel, because we have great respect for its unique—and, as we 

have observed during the years since its demise, irreplaceable—function. Much has 

changed during the past ten years, however, and we understand that among those 

who favor placing ACUS back in service there might be some sentiment for modifying its charter to give the organization a broader role and responsibility, and an 

instruction to take on matters of greater salience. On this point the members of the 

EOM Standing Panel were unable to agree among ourselves, and we urge the Committee to be cautious. It is not intrinsically difficult to attract high-level attention 

to high-visibility issues; it is much more difficult to attract high-level attention to 

low-visibility issues. The genius of ACUS was that although its charter was (and 

still is) flexible enough to encompass virtually any subject that can plausibly be 

characterized as a matter of ‘‘agency organization, procedure, or management’’ 4, as 

distinct from pure substance, its broadly representative structure drove it away 

from issues that might have provoked partisan strife and toward addressing a continuous stream of low-salience problems that were important to people who actually 

had to deal with the government. As we have learned during the years of its absence, if ACUS does not do this work, no one will. We urge the Committee to reauthorize ACUS using the existing language of its charter, to put ACUS back together 

75

as nearly as possible just as it was, and to allow ACUS to find its own way in its 

new environment.

I thank the Subcommittee for reexamining this issue and for considering the restoration of the Administrative Conference.

Mr. CANNON. Thank you. We appreciate your comments. 

Mr. CHABOT. Mr. Chairman. 

Mr. CANNON. Yes. 

Mr. CHABOT. If I could speak out of order for just a moment. 

Mr. CANNON. Absolutely. Do you have other commitments? 

Mr. CHABOT. Yes, I have a hearing that I have to attend on Iran 

nuclear proliferation. I have heard the other three testify. Professor 

Harter, I have yours in my hand. I assure you I will read it this 

afternoon. So I apologize. 

Mr. CANNON. Thank you. More time for questions for us. Professor Harter. 

STATEMENT OF PROFESSOR PHILIP J. HARTER, EARL F. NELSON PROFESSOR OF LAW, CENTER FOR THE STUDY OF DISPUTE RESOLUTION, UNIVERSITY OF MISSOURI LAW SCHOOL 

Mr. HARTER. Well, this is the part of the schizophrenia of this 

issue. 

Mr. CANNON. We would hope that the structure that we come up 

with for ACUS is simple and flexible enough to accommodate the 

problems that we have in daily life, like getting our light system 

to work. 

Mr. HARTER. Let me begin by saying that after a—my title of 

Earl F. Nelson Professor of Law is very much of a newbie. I have 

spent 35 years here in Washington working with agencies, among 

them, and in that I have observed them in action, and I do want 

to point out that that is two words. And I am here to wholeheartedly support the resurrection of the Administrative Conference, and I want to do it really on two grounds. One is that I 

think that the reestablishment would not only save the Government significant sums of money. Clearly I think we need it as an 

investment, but also that it would enhance democratic or, if you 

want to be nonpartisan about it, civic republican values in America, of just how the people participate in the Government. 

You look back, since the APA was enacted in 1946, significant 

changes have taken place in the management structure of the Federal Government. There are new forms, major new forms of publicprivate interaction, reliance on the private sector with oversight by 

Government, new developments and relationships between Federal 

and State governments, new perceptions of how the Government 

should and should not function when making important decisions 

in relationship with individuals in the private sector. If you think 

about it, agencies in each individual agency, entity, each individual 

subagencies, hundreds of them, must confront each of those demands daily, each time they take action, and so similar choices 

must be made over and over and over again in Washington. Agencies lack the way of finding out what works and what doesn’t work. 

Let me go over some specifics as to some of the needs. I was recently—gave a little pep talk to an agency on how negotiated rulemaking works and whatever, and a couple of representatives from 

other agencies heard that I was going to do it and asked if they 

76

could attend, and the answer was no. Bizarre. It was a lack of 

sharing experiences across agencies to support insights. 

One of the major provisions of the Administrative Resolution Act 

is its confidentiality provision. It was one of the leading early provisions. It had some ambiguity, some interpretation. How do you 

dovetail mandatory confidentiality at agencies with inspector generals, how various parts work. 

What do we have? Federal Government set up a committee to 

talk about guidance for confidentiality and dispute resolution proceedings. The American Bar Association set up a committee to talk 

about confidentiality in administrative dispute resolution proceedings. Now, even though these parties are going to be in the 

same proceeding, those two committees don’t talk to each other. 

They come up with different advice. There is no way to share the 

insights or to come up with a common set of goals on how to implement. The communication has broken down. 

Second, if you go through and look at an awful lot of the recent 

legislation, that because there is no ACUS, Congress is ad hocking 

it. It will require agencies—well, go talk to the National Research 

Council. There is no continuity. There is no standing membership. 

There is no particular insight into the broad perception, so let’s just 

go out and find out individual aspects. 

One that I found interesting was American University held a 

major conference on electronic rulemaking earlier in January. One 

of the major reasons given for expanding e-rulemaking, and certainly it has major aspects in e-data acquisition and management 

but another aspect is the accessibility of the American public, an 

ability to participate in rulemaking via the Internet. And I will tell 

you when they were talking about what they were going to do it 

just sent shivers down my spine. If implemented without care, it 

will just basically disenfranchise individuals because what they are 

talking about is establishing a dialogue for rulemaking, basically 

an ad hoc, negotiated rulemaking. What individual has the time to 

be there? Only the organized interests are going to be on the other 

end of that communication. It will be in fact ex parte communication in broad daylight. 

We broke down into work groups and in my work group that I 

chaired, and it was really a bizarre, you know, which turned out 

to be a broadly representative group—was strongly of the view that 

the Government needed to establish an advisory committee of public and private people to advise on public participation. After all, 

the whole name of it is how the private people participate in Government. Wouldn’t it be nice if the Government asked the private 

people how it ought to work? And so based on that, I sent a petition, or a letter I guess actually, to three of the leaders of the erulemaking effort suggesting that an establishment of an advisory 

committee could be a good idea, to which I got a resounding nothing. Not an answer. I was told by somebody who was at the meeting that my answer said all they want to do is take a hold and take 

it away. It was some kind of pejorative answer. All of those issues 

would be addressed by an Administrative Conference wishing to 

have a dialogue among the parties, desperately. 

So what has happened is the private sector is talking to themselves, the Government is talking to themselves without bridging, 

77

and we have got to get over that. That is what we are talking 

about in the e-rulemaking—I mean in the EU process. 

I think as to the membership, I would—although I think that the 

statute is fine, I would urge a much broader membership of—I 

mean if you listen to the four of us the words ‘‘administrative law’’ creep in a lot. It isn’t just administrative law. It is administration. 

It is the Administrative Conference, not the Administrative Law 

Conference. I think you need experts in management. You need 

economists. You need public administrators. You need all levels of 

Government. You need political agencies, senior service, and you 

need the staff. After all, it is the staff that is going to implement 

all of that and I think the staff has been woefully underrepresented 

in the Conference. 

So I would hope that in its new incarnation that it be really 

broadly represented of diverse interests that would be affected by 

it. 

Lastly, the question of appropriations. I would admit to a mistake, an error in my prepared testimony that I sort of abstracted, 

which I think the current value of the original appropriation would 

be $10 million, and I was wrong as to what the original appropriation is. But I still think that is a good figure, because I think that 

you really do require resources to go out and do the sophisticated 

stuff, to answer a lot of the questions that have been raised by you 

and by the other panelists, and again I think that will be an investment well made. Iurge your action and I am excited that you 

are undertaking this. 

[The prepared statement of Mr. Harter follows:]

PREPARED STATEMENT OF PHILIP J. HARTER

My name is Philip J. Harter. I am the Earl F. Nelson Professor of Law at the 

Center for the Study of Dispute Resolution at the University of Missouri—Columbia 

School of Law. I whole heartedly support the resurrection of the Administrative 

Conference: Its re-establishment would not only save the government significant 

sums of money, it would also enhance democratic—or, to be non-partisan about it, 

civic republican—government. 

BACKGROUND AND PERSPECTIVE

I would like to provide a bit of my background since it forms the perspective for 

the observations that follow. To a very real extent, the Administrative Conference 

has determined the course of my professional life. Thirty five years ago right now 

I was a research assistant to Professor Roger Cramton at the University of Michigan Law School. The project we were working on ultimately became ACUS Recommendation 2, and Professor Cramton became Chair of ACUS. I later became Senior Staff Attorney at the Conference and developed a program on regulatory reform. 

After I entered private practice, I was subsequently a consultant to the ABA’s Coordinating Committee on Regulatory Reform that played such a crucial role in the 

debates of the late 70s and early 80s. In the mid-90s I chaired that committee, and 

in that capacity I had the honor to work closely with this Committee. 

I have been a consultant to the Conference on several occasions. Probably most 

notably, I developed negotiated rulemaking as a consultant to ACUS and wrote a 

series of articles on the use of dispute resolution techniques by the Federal Government. Those articles resulted in the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. Through its recommendations, oversight, and consultations, the Conference played a pivotal role in improving the way government 

agencies make decisions affecting the public. 

THE DESPERATE NEED FOR ACUS

The processes government agencies use to make decisions are complex, difficult, 

and continually evolving. The flexible, scant procedures outlined in the Administrative Procedure Act have been supplemented by numerous Executive Orders, judicial 

78

decisions, and ad hoc statutory requirements. Moreover, since the APA was enacted 

in 1946 significant changes have taken place in the management structure of the 

Federal government, and there are new forms of public-private interaction, new developments in the relationship between Federal and State governments, and new 

perceptions as to how the government should function when making important decisions. Officials in each agency must confront all of these demands each time they 

take action. As a result, similar choices must be made over and over again in the 

halls of Washington about how to make decisions. 

Oftentimes officials have little information as to how well a program implemented 

by another agency works or little guidance as to how the duties could be successfully 

discharged or major pitfalls avoided. Those who deal regularly with multiple agencies have witnessed the dire need for some means by which agencies can share insights and experiences and to gain expert advice as to the best ways to go about 

the public’s business. Without it, agencies necessarily incur high transaction costs 

by repeatedly reinventing similar procedures; the lack also means the best ideas are 

not recognized, strengthened, and used more widely nor the worst improved or discarded. 

Further, advice would be helpful both to Congress and the agencies as to the potential structure of new ways to achieve public goals and to respond to public inquiries and criticisms about how individual agencies have functioned. And, Congress 

and the agencies alike could benefit from the insights and advice of those who are 

directly affected by the administrative process and from those who study it from a 

variety of perspectives. 

Since the demise of ACUS, we lack the means to refine how we do the public’s business: no office or organization regularly convenes a broadly representative group 

of experts to deliberate about how to improve the quality of the administrative process. A permanent entity such as renewed ACUS is needed that can be devoted to 

solving the problems of excess costs, delays, and burdens that are imposed upon the 

agencies and upon the public by inadequate, inefficient, and duplicative government 

processes. 

Individual agencies, while they have the ability to review their own performance, 

lack the capacity to make cross-cutting agency reforms and comparisons. Furthermore, agencies acting alone cannot make the necessary procedural reforms for the 

improvement of administrative process as a whole. And, agencies usually do not 

have the incentive, will, or resources to conduct a thorough self-examination to see 

if they could do things better. 

A forum for collegial self-critique and development of effective administrative 

practices is eminently desirable. Moreover, one is needed that can bring a sense of 

unity to administrative agencies and promote an appropriate degree of uniformity 

in their procedures. Congress should, therefore, establish such an institution that 

will systematically seek to promote improvements in the administrative process: 

The Administrative Conference is just such an agency. 

The primary purpose of revitalized ACUS would be to care for the improvement 

of the administrative process. In doing so, it would examine government procedures 

and practices, with the goal being to search for new ways of helping governmental 

agencies function more fairly, efficiently, and effectively. The organization could 

play a leading role in the development of domestic administrative law doctrines. 

One of its foremost functions would be to review and evaluate whether the basic 

law governing administrative procedure, the Administrative Procedure Act (‘‘APA’’), 

as well as other procedural requirements should be revised and updated. It could 

also arrange for the interchange among administrative agencies of information potentially useful in improving administrative procedures. Another role it could discharge would be the preparation of resource documents, bibliographies, and advice 

and recommendations on various topics confronted by agencies. Although now aging, 

ACUS handbooks are on the desks of many of the leaders in the administrative 

process on both sides of the great public-private divide. 

The new ACUS could also focus on the more minute details of the administrative 

process as well. Specifically, it could study and adopt recommendations concerning 

better rule-making procedures, or ways to avoid legal technicalities, controversies, 

and delays through agency use of alternative means of dispute resolution. For example, the exploding use of the internet and other forms of electronic communication 

present wonderful opportunities for increasing the information available to our citizens and their participation in our affairs. But, tapping these resources and making 

sure they work effectively and efficiently is itself a daunting task. A recent conference on e-rulemaking held at American University pointed out many potential 

problems that could arise if the procedures used for e-rulemaking were not carefully 

developed; the public at large could effectively be disenfranchised. Moreover, a 

strong recommendation was made that since much of the work on e-rulemaking is 

79

being done in the name of enhancing public participation, it would help if those in 

the government actually consulted with interested parties in the private sector. Yet, 

multiple requests to leaders of the e-rulemaking effort for the establishment of an 

advisory committee that could provide such advice and make recommendations to 

protect against abuse went unanswered. That experience alone points to the dire 

need for an oversight body. 

Another focus would be to collect information and statistics from administrative 

agencies and to publish reports that could be useful for evaluating and improving 

administrative procedure. It could also evaluate the judicial review of agency actions 

and make recommendations for its improvement. A major issue confronting the administrative process that has emerged forcibly in the past few years is the delicate 

balance of open government in a time of concern over national security and the 

means by which requirements are imposed on our citizens and businesses to protect 

our homeland. 

Another purpose for renewing ACUS could be to serve as a regulatory ombuds. 

It could in appropriate circumstances investigate and respond to individual complaints and undertake a systematic performance review of various government agencies, especially of those agencies with serious operational and programmatic problems. Individual agencies themselves often resist any critical self-evaluation in response to public complaints due to burdensome workloads or a failure to admit the 

flaws in one’s own prior decisions. An independent, objective entity, unfettered by 

internal agency politics and its own inertia, can offer meaningful recommendations 

to improve the operational structure of administrative agencies. 

We also lack a repository on administrative processes that the various state governments could call upon for high quality administrative procedural advice. ACUS 

could consider ways to improve federal, state, and local relations in different areas, 

including those in which state and local agencies administer federal programs. The 

organization could attempt to promote cooperation and coordination on interstate 

administrative procedural matters to foster a responsible and efficient administrative process among the several states. The entity would be equipped to advise state 

agencies and their staffs of significant legal developments and emerging trends occurring in the area of administrative procedure. 

Another major issue in administrative procedure comes from the international 

harmonization of laws and regulations. As a result of harmonization, many domestic 

regulations will need to be changed to bring them into conformity with the international requirements. Just how that is to be done is a complex, controversial issue 

that needs to be addressed. 

ACUS was structured to develop objective, non-partisan analysis and advice. It 

had sufficient independence from particular policy-based responsibilities, and hence 

its recommendations were given credence and were seen as a detached analysis. The 

structural makeup could bring together an inter-disciplinary collection of experts in 

the administrative process. Membership would preferably include: committed senior 

management agency officials, professional agency staff, representatives of diverse 

perspectives the private sector who deal frequently with agencies, leaders of public 

interest organizations, highly regarded scholars from a variety of disciplines, and respected jurists. The problems that ACUS should address include management as 

well as legal issues. Thus, its panel of experts should be comprised of members with 

both legal backgrounds and those who may not have legal training, such as management, public administration, political science, dispute resolution, and law and economics. State interests should also be included in the entity’s membership by sending representatives from certain state agencies or state organizations. 

One final point should be made: Although it is currently politically unfashionable 

to suggest that funding should be increased, that is clearly the case here. Throughout its life, ACUS was a huge bargain for the United States. But towards the end, 

inflation had taken a huge toll on its stationary authorization, and it was not able 

to function to the full extent of its potential. I suggest strongly that the in the process of re-establishing the Conference, the appropriate level of funding is the amount 

of the original statute updated to reflect inflation. My own, back of the envelope calculation is that that figure would be about $10 million. From 35 years of observing 

the Federal government in action (note that’s two words), I firmly believe that such 

an amount should be viewed as an investment that would be paid back many times 

over. Even if it were not, the improved quality of the decision making process would 

be more than worth it. For example, what number would anyone put on the costs 

to our society if the procedures that are bursting upon us from the electronic age 

and globalization are not implemented appropriately? This is a tiny price. 

The new ACUS will help significantly in ensuring that our public decisions are 

made effectively, efficiently, and fairly. That is clearly a major undertaking, but one 

ACUS is structured to discharge for the benefit of us all.

80

Mr. CANNON. Thank you, Professor. We only have two Members 

here but we are going to strictly abide by the 5-minute rule and 

I will—you poke me, because I think we are going to have several 

rounds and then I would probably do better if we go back and forth 

in that fashion. 

Now, you know, I have a brother who actually served on the 

ACUS twice and you know him, Professor Harter. 

Mr. HARTER. Can I tell a wonderful story? 

Mr. CANNON. Yeah, you can, but let me ask a question first. You 

worked on neg reg a lot, and he keeps telling me that he is solely 

responsible. Can you clarify the record on his role? 

Mr. HARTER. Well, it is certainly true. We were on a panel together and it really resulted in one of those lines that I absolutely 

love. And I can’t remember how the line came up, but we reached 

a disagreement. He said, well, wait a minute, I have the authority 

to issue that rule. Why should I work with this committee? And I 

turned to him—this is all off the record—and I said you have the 

authority but you lack the power. And that is when he became 

really very much of a proponent of the whole idea of working it out 

with the political constituents. 

Mr. CANNON. That was between times, I think, on the ACUS. 

Thanks. Let me just ask a question that I would like you to respond to and then Ms. Payton, because Ms. Payton is saying no 

changes and you are suggesting a substantial broadening to bring 

in professionals from other scientific areas. 

I take it you are actually thinking in terms of an increased appropriation to have more staff because you talked about staff in 

particular, and then going to all levels of Government. Do you want 

to flesh that out a little bit and then, Ms. Payton, I would like to 

get your view on that. 

Mr. HARTER. I think that the structure at the Conference both 

in terms of numbers and everything is probably okay. I would just 

again in the appointment process, would look for more diversity of 

professional and diversity in general and I mean, I think some of 

the serious management expertise, which I think would—really a 

little more economic ideas, a little more, again, different levels of 

Government, State representatives, maybe a NAAG or State Governors. I think it would because of the public-private. And I think 

that on the staff level, having a different perspective, and I think 

some of the issues that both—the committee and here have talked 

about, we are facing huge scientific issues. So I think having some 

degree of a technical ability would also help as well. So I don’t 

think it needs to be major, and I think the structure still works. 

Mr. CANNON. Is that consistent with what you are thinking, Ms. 

Payton? 

Ms. PAYTON. Well, the way I read the charter, I thought that 

there was authority to appoint those kinds people as public members anyway. 

Mr. HARTER. Oh, absolutely. 

Ms. PAYTON. And I also think that ACUS has the authority to 

appoint to its committees people who are not public members of 

ACUS. I believe we have done that. We can. They can. 

81

Mr. CANNON. So you believe that when you talk about the group 

could regulate itself, you believe that there is plenty of latitude in 

the current charter to do the kinds of things? 

Ms. PAYTON. That is the way I see it. Now Gary may have more. 

Mr. EDLES. I think that is absolutely right. I mean it does, the 

statute does indicate that there are to be private citizens, members 

of the private bar, but also other experts in the administrative 

process. And historically ACUS did have economists. We often had 

members, I remember—I believe David Piddle, who was then a 

Consumer Products Safety Commissioner, who was basically an engineer, who participated actively in ACUS activities. So we did 

have representation even in the old days of people who were not 

lawyers, although I must say it was fundamentally, I think, a lawyers organization. 

Mr. CANNON. Mr. Gray. 

Mr. GRAY. I think in terms of the studies that were commissioned, they could be studies by economists or scientists. There was 

no limit. It wasn’t only study by lawyers. So there was plenty of 

access to expertise outside the law. 

Mr. CANNON. Good. Maybe in this context can we talk about 

funding, because when you go outside, I mean what you had in 

ACUS was all these incredibly brilliant people who came together 

and participated with relatively small budgets. But when you did 

study on the outside you commissioned those funds for those and 

that cost money. I suspect what we will do is include in our report 

language the idea that we should be looking at these broad groups 

of people to be representative. But do we need more money than 

what we are talking about so we can do these kinds of studies, and 

maybe, Mr. Gray, you can take that question. 

Mr. GRAY. I really would like to get Gary’s perspective on this, 

but I think it would be very useful to have more funding because 

our outreach would be much broader. I have taken as an example, 

what I suggested, which may not be workable, but this EU comparative project I think would be ultimately better done by an impartial entity like ACUS rather than a private entity with questions about its funding. It is going to cost a hundred thousand dollars to do that. 

Mr. CANNON. I am sorry. How much? 

Mr. GRAY. A couple of $100,000 and that is not the kind of thing 

the private sector can come up with without raising questions 

about where it came from, and yet it is not that much, it seems 

to me, for it be funded out of something like that because it is not 

a backbreaking, seems to me, figure. All I know is there are all 

kinds of budget constraints. 

Mr. CANNON. I would like to pursue this topic a little bit more 

so we can get some clarity on the record, but my 5 minutes has expired and we will come back to that. 

Mr. Watt, would you like to take 5 minutes? 

Mr. WATT. Thank you, Mr. Chairman. Let me just play devil’s 

advocate here for a little bit, because we have now heard from six 

witnesses, all of whom have been vigorously in support of reauthorizing, and while I certainly share that view, one of our obligations, 

I think, and in the process that I described and referred to in my 

opening statement works best, we get both sides of an issue and 

82

there has not been any witness yet who has said this would be a 

terrible idea. 

Let me be further provocative to—and probably counterintuitive 

to assume that there was a rational basis for terminating the Administrative Conference of United States. When I look back and realize that that happened in 1995, I kind of have to step back from 

that because there was a lot of stuff happening in 1995 that was 

not based on any rational evaluation. So I have got an opportunity 

here to put all of this together because I have got people, I think, 

who understand the history of how we got here. 

What was the rationale, if there was a rationale, for terminating 

this agency? 

Mr. EDLES. I can tell you what the House Appropriations Committee report said, which is simply that ACUS had completed its 

mission as of 1995. As to whether there were other rationales, I 

can only say what the public report said. 

Mr. WATT. Were there any kind of hearings to document the 

completion of that mission or any discussion to build a record in 

support of that conclusion? 

Mr. EDLES. There was a hearing—there were hearings, I think, 

before this Committee which fundamentally came out supporting 

the Administrative Conference. We did have our usual, you know, 

hour and a half or 2 hours before the Subcommittee on Appropriations. That was the oversight provided for us insofar as our annual 

appropriation was concerned and it was presumably on the 

strength of that, you know, hour and a half meeting and information we had submitted in which the Subcommittee came to the conclusion that we should be—we should no longer be funded. But I 

think it was an era, quite frankly, in which there was a looking 

around to see if there could be widespread Government retrenchment. 

Mr. WATT. This was reform. 

Mr. EDLES. And our little agency, I think, is what came up in 

that time. 

Mr. WATT. Mr. Harter, you look like you are just chomping at the 

bit——

Mr. HARTER. No, I am not sure I am chomping. 

Mr. WATT.—to respond to this question. 

Mr. HARTER. I will add a little bit to the discussion, and in my 

view I think it was time that the Conference needed to be revitalized. I mean I think that it needed to be energized and what not. 

I am not sure that I would take the boot heel that was taken to 

it, I mean to this kind of the ultimate one. But I think it needed 

resparking along the lines that I think a lot of us have been talking 

about here, and I think in part my view is that it lacked as much 

of the energetic and enthusiastic support at that time that you are 

seeing now for the reconstruction of it. 

I mean, I think that a lot of issues have emerged that are not 

getting addressed, and so it might be that this had become slightly 

torpid in that way. 

Mr. WATT. Mr. Gray, you were—you said you testified at a hearing where this was evaluated. Were there compelling reasons advanced on the opposite side of where you were? You were in favor 

of reauthorizing, according to your testimony. Were there other 

83

1The correct reference to the article cited by Professor Payton in her testimony is as follows: 

Toni M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the 

United States, 30 Ariz. St. L. J. 19 (1998). 

people on the other side who were making some compelling arguments to terminate? 

Mr. GRAY. Well, I have to be candid since I am testifying. There 

were interests, private interests, if you will, that were opposed to 

the reauthorization. But they never really surfaced publicly with 

their arguments. I think what was public was the testimony rather 

to the contrary that it should be reauthorized. 

Mr. WATT. Okay. 

Mr. CANNON. We will come back for another round. Did you want 

to add something to that, Ms. Payton? 

Ms. PAYTON. Well, I think that everyone here at the witness 

table is being reluctant to say what we all know. May I suggest 

that——

Mr. WATT. I am prone to go to meddling in stuff that makes people have to come to grips with that. 

Ms. PAYTON. Right. Well, I think you might find it useful to read 

at least some excerpts of a law review article by Toni Fine, which 

appeared in the U.S. Law Review 1 a little while ago, that really 

goes to the legislative issues of the demise of ACUS. You would 

find that very useful in its meticulous detail. 

Mr. CANNON. Ms. Payton, could you make that article available 

for our review or at least give us the citation so we would like to 

have that be part of the record? 

Ms. PAYTON. Certainly. 

Mr. CANNON. Thank you. Just for the record you should be aware 

that the Administrative Law Subcommittee had a hearing on 

ACUS and reported out that language to reauthorize it when the 

Appropriations Committee decided not to. I have actually talked to 

people who were engaged in that process, both Democrat and Republicans, and they don’t remember it. I think this is just—I would 

love to suggest the point of all that is that ACUS’s work was not 

widely understood beyond the people that were involved, and I 

would hope that one of the agenda items, one of the things that the 

ACUS would do would be to have staff to make sure that Congress 

understands what they are doing. 

I don’t think we have any real serious opposition to reestablishing ACUS short of that. We were talking about funding a bit 

ago, and in my opening statement we talked about a couple of 

other projects that ACUS did over a 28-year period of time and we 

are talking about this study. 

Mr. Gray, do you think it would cost $100,000—I think it would 

be at least that—to do that kind of depth that we want to do? How 

many studies—given the kind of workload of 28 years, you are 

looking at 10 or fewer series of projects—how many studies should 

we be looking at? One per year, one every other year, five per year? 

Do you have any sense of how much ACUS can do and how much? 

Mr. GRAY. Well, I think because it has not been around for nearly 10 years there is a backlog of things that need to be looked at. 

I mentioned just three of them, including in addition to the European Union project that come to my mind, and in dealing with the 

quality of purity, which are related topics. So perversely it might 

84

take more to get it underway and make the backlog through of 

things that need to be looked at, and it might then drop afterwards. 

Again I look to Gary. I think he ran this. I was on the council, 

but I wasn’t involved in daily administration, and I think you had 

a better answer. 

Mr. CANNON. Let me just say here that I agree with your analysis. You may have a big need that may trail off, and so my sense 

is that when we are talking $3 million you might need to pick it 

up a little bit so that we authorize enough to actually do what 

needs to be done? 

Mr. EDLES. Yeah. Over my period, 1987 to 1995, I think we probably tackled a dozen fundamental, major projects each year. I think 

a couple points on the value here. One is that we—all the private 

sector members who participated did so pro bono. I mean, people 

like Boyden Gray did not get their hourly rate when they did work 

for the agency. They did all of that as volunteers and did a lot of 

hard work as volunteers. Secondly, the law professors by and large, 

although some of them were not law professors who served as consultants to ACUS, never really got market rates for what they were 

doing. There was first of all, their desire to have entree to Government agencies, which they got through the Administrative Conference, which they could not have gotten if they were just a law 

professor doing a study of some agency. They would not have gotten a hospitable relationship of the type that they got because of 

ACUS. So they were eager to do their projects through the Administrative Conference, and the Administrative Conference on the 

other side was quite willing to have them publish their studies in 

an independent law environment. So through that sort of symbiotic 

relationship we managed to get them at well below market rates. 

And I think our projects, we used to fund them in the range of 

$10,000. I mean, things of that nature. I think some probably as 

little as $5 or $6,000. Maybe some were a little more pricey if they 

had to be done fast or if there was more than one consultant that 

needed to be used. But, you know, we were not talking in the hundreds of thousands of dollars for individual consulting projects the 

way the Government does normally. 

[3:30 p.m.] 

Mr. CANNON. Thank you. 

Professor Harter, I resonated with your personal comments about 

the Internet. I would like to go to you. 

You talked about the Internet rulemaking and what essentially 

becomes ex parte communications in the open. In the last 4 days, 

I have had four opinion pieces or opinion page articles in the Washington Journal about me and what I am doing on immigration; and 

that is sort of cool, except there are at least a dozen and probably 

100 Web sites out there that are saying horrible things about me. 

And I looked a little bit, or attempted to look, but there is no way 

on the face of the Earth that I could respond to all that is said by 

people who don’t like what I stand for and do on immigration. 

How do you deal in a world of information with people who want 

to see things—how do you deal with that? Nobody has the resources except the fanatic or the corporation that has the money 

85

to do it. So I am impressed by your thinking about that, and I have 

been thinking about that. 

We have had issues on the Forest Service where we had 2 million comment, because they are organized. They are in environmental groups. And the other side, maybe you had 50,000 barbers 

who inarticulately got online and said I don’t like what they are 

suggesting. And so you weigh those which we don’t do but we do 

do and you come up with skewed decisions. 

You obviously have thought about this a little bit. Would you 

mind commenting about what we do with the Internet? 

And secondly, both of you, Ms. Payton, is the structure—the current structure of ACUS sufficient to deal with these kinds of challenges? 

Mr. HARTER. I am not sure I can address the technical aspects 

of the Internet. There is a lot of thinking going on about it; and, 

in fact, the Forest Service rule is one that is commonly used in 

talking about, well, let us have the computer screen the rule. The 

computers will read the 2 million rules and tell you what the various comments were. 

I think what my point is, is that what really—and NSF has a 

program that is looking at it. American University has a program 

that is looking at it. There is one inside the Government that is 

sponsored by the White House and EPA that is looking at it. But 

these groups need to talk to each other, and the public at large 

needs to participate in some of the discussions. 

I mean, I gather, from talking to people who have been deeply 

involved in it, this whole issue of the response, the ex parte in the 

open is really not looking at it. They are looking at the technology, 

as opposed to what is happening with—the average person can’t 

keep up with it. So I don’t have an answer to it. 

Those of us who do what I do often quip: I don’t do substance, 

I do procedure. And what is really needed, I think, is an advisory 

committee to talk about it and come up with guidelines on it that 

will take these issues into account. It strikes me that is the perfect 

vehicle to do it. It is built that way and comes up with the recommendations that are broadly representative, so it is the perfect 

vehicle to do that. When I raised the prospect of an advisory committee, I didn’t get the courtesy of a response. 

Mr. CANNON. You think ACUS, the way it was set up, could handle it? 

Mr. HARTER. Absolutely. They may need a new committee, but 

that is easy, and that takes 4 minutes. 

Ms. PAYTON. Let me muse a little in a way that I don’t ordinarily 

do on the record. 

The revised ACUS needs to have both the range of interests represented that allows it to be a kind of very high-status, diverse 

group. On the other hand, it needs to be nimble and flexible and 

needs to be able to do something about all these problems; and it 

needs to be able to respond in a shorter time frame than having 

recommendations deliberated at a plenary session. 

I guess the one thing I would suggest is that recommendations 

be allowed to be promulgated—to be made by groups that are 

smaller than the plenary session. Now that is how the National 

86

Academy of Sciences does it, and that is how the National Academy 

of Public Administration does it. 

I am not taking a position on behalf of NAPA as a whole. The 

organization that is authorized to comment is the EOM panel, 

which is a subunit of NAPA; and this is the way in which we compromise between our interests in having a diverse general membership and then subject matter panels that are expert but that themselves are fairly diverse and they can respond to these things. 

I think the work of ACUS would be enormously improved if all 

recommendations didn’t have to go through that plenary and if people who were not public members of the conference as a whole 

could sit on committees, and then you would have something that 

looked a lot more like the National Academy of Sciences. 

I would say that when you start expanding that mandate—and 

I am speaking as an advocate—when you start expanding that 

mandate, I am afraid that you draw the attention of ACUS away 

from the small. Now, ironically, it is the small that can’t get any 

attention paid to it unless ACUS pays attention to it. So what I 

would say, if you want to expand that mandate, you have to give 

ACUS some sort of incentive to make sure that it keeps tending 

after these fairly minor issues. It has to have a division that does 

that or something of the sort. 

Mr. CANNON. Thank you. I have gone over my time, and I apologize. Mr. Watt. 

Mr. WATT. I just wanted to get an appreciation of what the prior 

budget was before the termination and if we extrapolate out with 

some reasonable cost of living adjustment what that would result 

in. 

Mr. EDLES. The budget when ACUS was abolished was $1.8 million, and it had a staff of 18 employees at that time. At the high 

water mark of ACUS, I think it had a budget of $2.3 million. That 

was the highest ever, and that supported a staff of 24 employees. 

Mr. WATT. And if you were thinking about the ideal—taking into 

account the backlog of things that has not been attended to since 

ACUS has not been in existence, first of all, for how long—how 

long do you think it would take to get that backlog taken care of 

and to what extent would the budget be ramped up for that period 

of time and for what period of time? 

Mr. EDLES. I don’t think I can answer either of them, how long 

it would take or how much it would cost. 

I can tell you that when President Eisenhower set up the first 

temporary conference, he did that in 1951. That conference lasted 

for 2 years. So it was over, I guess, in 1955. By 1961, President 

Kennedy had to set up another temporary conference, which means 

that over a period of 4, 5 years there was again a need for additional work. 

The first temporary conference came up with about 30 recommendations, as I recall reading, and the second temporary conference also with something on the order of 30 recommendations. 

I don’t really have a real strong feeling as to, you know, how many 

various projects there are out there. I suspect there are scores of 

them that could be usefully done at this stage. And I think $10 million would probably be a wonderful figure. I think, quite candidly, 

87

something in the neighborhood of 2 to 3 million would probably be 

more politically acceptable. 

Mr. WATT. At least for a start. At least to start. 

I am just trying to create a record here with expert input, which 

I think, even if you are guessing, if it is an educated guess, is better than having an appropriator pull a figure out of the sky, I guess 

is the point I am making. So I want—let me just encourage each 

of you to do some creative thinking about this, whether you do it 

today or whether you submit it to us to supplement the record subsequent to today’s hearing. I think you all are in a better position 

to evaluate this than either the Chairman or I would be and certainly in a better position than some appropriator pulling a figure 

out of the sky would be. So if you don’t have a good feel for it 

today, I would just hope that you would give it some thought, give 

us your input and the basis on which you make that input. 

Mr. CANNON. Without objection, I suggest we leave the rest of 

the record open for 7 days so you all could submit your thoughts 

on funding to us. 

Mr. WATT. There are some responses that they may be prepared 

to make today. 

Mr. CANNON. Without objection, so ordered, on leaving the record 

open. 

Ms. PAYTON. I am so nervous about the prospect of diluting the 

main focus of ACUS. One of the reasons why you are getting such 

a bipartisan, enthusiastic response is exactly that ACUS did something that was enormously important and irreplaceable, something 

that only ACUS could do and no one else will. 

When you start expanding the role of ACUS, you may wind up 

in terrain that other people think they already occupy; and it is almost possible that this measure that at the moment is going forward so smoothly may encounter some rocky places. 

Mr. WATT. I guess my response to that is I think it is part of our 

responsibility to forward some parameters with this, not just to say 

we reauthorize ACUS, but we reauthorize it up to a figure of x 

amount per year. Now whether the appropriators buy that figure 

or not, I think may be—if this process works as it should work, it 

will be in direct proportion to the—our having justified it and built 

a record in support of it. And I think that is much—a much better 

way, even if you come up with different figures, with different visions. As long as we understand what your assumptions are, we 

have built a record and can take that into account in our Subcommittee and full Committee’s evaluation on the authorizing side, 

which is what our responsibility is in this process. 

Mr. HARTER. When I discovered my error in the testimony, I actually gave considerable thought—although, obviously, a lot of it is 

guess. Let me just sort of give food for that. And I share the concern one wants to keep it closely cabined or corralled, focused on 

the administrative process. My definition may be broader, but 

when it gets beyond that, it will encounter opposition that will be 

adverse. 

On the other hand, I think there are a number of different parts 

of what the conference does that we need to be focused on. I think 

there are a whole series of large processes that Boyden has been 

88

talking about that would need to be undertaken, especially given 

the hiatus. There are a whole series of smaller ones. 

In individual research areas, you get professors to do things on 

the cheek so long as there is not a lot of research, but research is 

expensive to get it done. And it strikes me in the latter days of the 

conference that it was having trouble coupling together enough resources to do good projects. It was getting money from other agencies. It was soliciting from the people it was going to study. It 

makes me a little nervous, and I think it diminished its 

nimbleness. 

I certainly echo the idea of having the broader committees. So, 

from my view, I would be concerned if it really were constrained 

only $2 million or $2.5 million. I don’t think it can really function 

effectively at that rate to get it done. My own view, a minimum of 

$5 million is necessary; and, frankly, I would go with the $10 million, with the urging that 5 is probably the minimum. If it is too 

scant, the quality of the studies just aren’t as thorough and as 

good; and part of its real advantage was thorough studies and a bipartisan support of the recommendation. 

Mr. WATT. Can I ask one more question, Mr. Chairman, just a 

corollary to that? For a 5 or $10 million investment, what would 

you project the savings were that resulted from just the—what was 

the major initiative? 

Mr. HARTER. Let me give a figure you can’t put a number on. I 

just completed 2 years ago a negotiated rulemaking for OSHA on 

building steel buildings. The subpart R of OSHA’s rules that had 

been on OSHA’s docket for 20 years, they had tried multiple times 

to revise the rule, each time unsuccessfully. The negotiated rule 

worked it through. Unanimous recommendation. OSHA implemented it. The fatalities in steel erection are currently about a 

third of what they were then. We are talking about probably 20 

deaths a year. What is the number? The regular rulemaking didn’t 

work for 20 years. 

Mr. WATT. There is method to my madness here, because this is 

the record building stage. Because I think it is our obligation to 

document the best we can the cost benefit of this reauthorization, 

and so I am being a little bit more meticulous than I would normally be because of that. I think we need to anticipate some of 

these issues, and if you all can submit something to us having 

thought about it in some more detail—I am not looking for you to 

be uniform. There is benefit I think in not being uniform. We are 

not asking you to get together as a group and come up with a 

group figure or a group vision or a group benefit, cost-benefit analysis, but this is the kind of information that I think would be helpful to have in the record to document not only the cost and what 

the reasonable costs should be to accomplish whatever the vision 

is that could differ from panelist to panelist but to document also 

the benefit of that cost; and that is, I think, what we don’t do nearly enough of in this body. 

I will yield back. 

Mr. CANNON. I would like to go through some notes and make 

some statements; and if you want to take notes, I will leave it open 

for you to comment on that. 

89

I appreciate, Mr. Gray, very much your statements. I think it extraordinarily important that we do this so that we stay ahead of 

the rest of the world. For me, that is very, very important. We have 

a world in which we can be transparent instead of opaque. We may 

be more transparent than Europe, but we want to be more transparent. I am a big fan of John Graham, and I appreciate your comments on him. This Subommittee is actually focusing on helping 

out there. 

Mr. Edles, you talked about—you made a great record. I really 

appreciate that. And you talked about the institutional memory. I 

just think that is remarkably important. We can put this back together with many people who are now and were in the prime of 

their lives that know what happened and know what we can do. 

And one of the things I hope we can do here is go from taking the 

negotiated regulation or rulemaking model to a negotiated permitting model. 

We are in a position where we have had massive forest fires, and 

we can’t deal with that in Congress. We fiddled around for 2 or 3 

years now on the Healthy Forest Initiative, and we still can’t get 

a consensus out of this body. We will never get a consensus out of 

this body. And we are not going to cut trees until we come up with 

a process that a rulemaking agency can do, and that is in part 

rulemaking but I think in larger part it is going to be a negotiated 

process for permitting—permitting the cutting of trees, permitting 

of drilling the wells and things like that so we that can come up 

with a process that actually works. 

The problem with it, of course—and, Ms. Payton, you talked 

about these things don’t work until something major goes wrong. 

And we have some major problems. In the case of forests, for instance, you have a forest fire because we didn’t tend to the forests 

because we could issue permits for cutting trees in a way that everybody agrees. There is a way to make sense. It is just that no 

agency is going to come up with a permit that doesn’t allow for litigation to stop the cutting of trees; and if it is not a healthy forest, 

we end up with massive forest fires. We lose the trees, lose the watershed, lose the endangered species. We are letting extreme conditions drive major issues that, when you get settled into a discussion with reasonable people, you come to conclusions. 

But it is not the reasonable people that bring the lawsuits. It is 

the people that have an agenda that is outside and choose their 

judge and all that because we abdicated. That is, America got rid 

of acres and acres. So negotiating the permitting I think is one of 

the incredibly important things that we are doing. 

Many things have been said today, and we appreciate your comments. Are there any comments on what I have said or——

Well, then I will yield back the time I have. Mr. Flake, do you 

have any questions? 

Mr. FLAKE. No questions. 

Mr. CANNON. Thank you for your attendance here. Your being 

here I think has created a record that is remarkable. More importantly, it will draw attention to people who need to understand how 

important this is and give us a boost in moving this legislation 

through and getting not only the reauthorization but funding from 

90

the appropriators. We appreciate your presence here today and 

thank you. 

The hearing is adjourned. 

[Whereupon, at 3:55 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO POST-HEARING QUESTIONS FROM C. BOYDEN GRAY


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RESPONSE TO POST-HEARING QUESTIONS FROM GARY J. EDLES


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RESPONSE TO POST-HEARING QUESTIONS FROM SALLYANNE PAYTON


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RESPONSE TO POST-HEARING QUESTIONS FROM PHILIP J. HARTER


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LETTER FROM MICHAEL HERZ AND DAVID RUDENSTINE


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Æ


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