Thurman Arnold, Harry W. Jones, Bernard Schwartz
Government by Commission
VTR Date: February 15, 1959
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GUESTS: Professor Bernard Schwartz, Professor Harry W. Jones Mr. Thurman Arnold
THE OPEN MIND
February 15, 1959
Moderator: Richard D. Heffner
Guests: Professor Bernard Schwartz, Professor Harry W. Jones, Mr. Thurman Arnold
ANNOUNCER: The Open Mind, free to examine, to question, to disagree. Our subject today: “Government by Commission.” Your host on The Open Mind is Richard D. Heffner, historian, teacher and author of “A Documentary History of the United States.”
MR. HEFFNER: Over a year ago — though right now it seems like only yesterday — a gigantic storm broke over Washington. Out of it came a book, a book that will be published this week by Alfred Knopf, “The Professor and the Commissions.” The book stems from the experiences of Bernard Schwartz to the House Sub- committee on Legislative Oversights. Mr. Schwartz was the Committees Chief Counsel. Well, there was a great deal of interest on the part of many Americans, not just in the explosion that rocked Washington; but in the whole question, in a sense the philosophical, political science question that came from the explosion had to do with the whole world of commissions in government. And today we are not go¬ing to discuss the merits or the demerits of the cases involved in Washington over a year ago but the whole question of government by commissions. One of the articles that appeared at the time of the to-do had to do with Mr. Schwartz’ experience; and this article said Schwartz was to announce that every time you turn on your gas stove, radio, or television set, or buy a train ticket or even buy groceries at the store you become subject indirectly to the ruling of these agencies, the agencies we are going to talk about today. What he did not add…the fact that most major industries in America were subject not indirectly but directly to the rulings of one or more of these same agencies. The Federal Communications Commission controls radio and TV licenses. The Federal Power Commission regulates hydro- electric development…or the railroads. The Securities and Exchange Commission enforces rules for stock and bond transactions. The Civil Aeronautics Board parcels out airline routes; and the Federal Trade Commission has responsibility over monopolistic and unfair trade practices. Together these so-called Big Six hand down decisions involving millions of dollars each month. And we are concerned tonight with these commissions and with government by commission. Now let me introduce to you my expert guests who will discuss this subject. My first guest is the author of “The Professor and the Commissions,” Bernard Schwartz, former Chief Counsel and Staff Director of the Special Subcommittee of the House of Representatives on Legislative Oversight; Professor of Law at New York University. My second guest is Harry W. Jones, Cardozo Professor of Jurisprudence at Columbia Law School, one-time Director of Food Enforcement of the Office of Price Administration. And my third guest is a man who has had a great deal of experience in Washington, Thurman Arnold, former Assistant Attorney-General of the United States in Charge of the Anti-trust Division; former Judge of the United States Court of Appeals; now a practicing attorney in Washington.
Well, gentlemen, I won’t pretend that we haven’t discussed this before we went on the air. We have discussed it, and there has been some heat and I think some…We agreed that I would pose the first question to Professor Schwartz, and it is simply this: Government by Commission –we made up the title; it could have had an exclamation point; it could have had a question mark. The implication is there is a problem here, and I wonder precisely what it is.
SCHWARTZ: Well, the problem as I see it, Mr. Heffner, arises from the fact that in this country we have given these jobs which you’ve been reading about to these different commissions. We have given them these jobs on the assumption that they were going to carry out certain basic public purposes, and as I see it they have in very large part failed in carrying out these basic purposes. Indeed, in some ways I think the purposes are really fictions utterly at variance with the fact in these different commissions.
HEFFNER: How do you gentlemen react to this cri¬ticism of the whole matter of the role of commissions? Mr. Arnold?
ARNOLD: Well, I certainly would agree that they are subject to criticism, some of them. But so are our courts, even the Supreme Court of the United States. I think that Mr. Schwartz has done a wonderful work in his book. He put a sanitary cord around these commissions, and of course the Federal Communications Commission is disgraceful. We…think we can criticize the whole commission of government as the Federal Communications Commission has been criticized; and I have the hope that due largely to Mr. Schwartz the Federal Communications Commission is going to be a better commission-from now on.
HEFFNER: Professor Jones?
JONES: Isn’t it a failure not of a system but a failure of people, that any institution that we would have is just as good as the people who administer it? Now we have a job here that I think we would all agree can’t be done by the courts. It can’t be done by the Congress directly because all the Congress can do is formulate general propo¬sitions, and general propositions don’t decide concrete cases. Isn’t the problem essentially that of how you build up an internal impulse administration in the commissions? Now, the English have done that and the French have done that. Can’t we find the people to do the job right? As I think they once did.
ARNOLD: Well, I doubt if the French or the English have done it. But we won’t discuss that.
HEFFNER: Well, let me just say this, that Professor Jones talks about system as opposed to the men who are in the system. I think maybe this is really the question before us. It is a matter I think Professor Schwartz has criticized the system as well as the men, and I think maybe we ought to focus on this question. Am I correct in my assumption?
SCHWARTZ: Well, let me just say this, that Professor Jones talks about system as opposed to the men who are in the system. I think maybe this is really the question before us. It is a matter I think Professor Schwartz has criticized the system as well as the men, and I think maybe we “ought” to focus on this question. Am I correct in my assumption? Why is it that these agencies attract men of inferior ability? I don’t think you can say there are good agencies and bad agencies. They don’t divide into a spectrum like the rainbow, though there may well be a pot of gold at the end of it.
ARNOLD: Well, I’ll answer that question. First, cheap help. The Foreign Economic Administration have tried thirty people before they finally got a good man. It is not a career. It is cheap help.
HEFFNER: Is this a criticism of the system?
ARNOLD: Not the system. This perhaps is budget balancing. I don’t know. But you’re putting people in positions which entitle them to a reasonable expectation of a living and saving, and you are not paying them enough. The second, fallout of McCarthyism. Nobody is safe in the government today. People are afraid still to go into the government. Look at Bob Stevens, a very great guy — the Secretary of the Army. He wasn’t on a commission. Look what happened to him under that attack. So I think that…not attractive. I don’t think anybody here at this table would take one of them.
JONES: Never again, the Lord knows. But it seems to me Judge Arnold’s comment suggests now that there is a double-barreled problem at least; that there is the influence on the commissions of perhaps undue sensitivity to favors from the outside, which was the Federal Communications problem. There is also the problem of just what the commission’s relations ought to be with the Congress that ultimately decides what the commission’s destiny is going to be. And here I think the problem is a problem of a land of a spineless generation, the kind of commissioner or administrator who goes into a panic at every call from a Congressman or from the fourth assistant secretary at the White House. And on this, on the cure of the spinelessness, I think the statement of Mr. Truman is the best one I know, and that old statement went, you remember, if you don’t like the heat get out of the kitchen.
SCHWARTZ: But it seems to me that we are again talking around the central problem. Of course the men are inadequate. Of course this is part of the general problems of our society. But here you have it specifically in these particular agencies, and why is it that these commissions are particularly susceptible to influence peddling, even corruption.
ARNOLD: Why was Judge Manton of the Circuit Court of Appeals, the United States District Court of Appeals, sus¬ceptible? I don’t know.
SCHWARTZ: Yes, but Judge Manton was the very, very rare exception. But in the commissions we have this going on constantly.
ARNOLD: I doubt that.
HEFFNER: May I pose this question? Do you gentlemen feel that the notion of an independent commission, indepen¬dent of the Executive, puts its members at the mercy rather than independence of the influences that you have been talking about? Is there something peculiar to the system of independent agencies?
ARNOLD: No, there’s nothing peculiar to the system.
JONES: I suppose I’m the one of the three of us who does. I think that this is a highly illusory independence and that a cure of our present troubles by talking about even more independence is really worse than the disease in its usual manifes¬tation because the independent commission — so-called – this orphan child of a three-way system of government is, I think, uniquely unable to deal with the important power centers in Washington, the one on Capitol Hill, and. the one in the White House.
HEFFNER: Why do you say…doing this?
JONES: Uniquely, I think, because if you were in the Executive establishment — and I know my two colleagues don’t agree with me at all on this — if you’re in the Executive establishment and the heat is on and you are trying to do an honest job, and if you can get the backing then you can stand up under any pressures. If you are in an independent agency which has to maintain these cordial relations with its governing standing committee of the Congress, et cetera, you don’t get the backing and your independence becomes an illusion.
ARNOLD: Well, that sounds like nonsense to me because I’ve been an independent agent. You get the backing if the people like to back you; and you have the same troubles with Congress if they don’t back you. And I think there is strength in having the protection of being an independent agency.
JONES: I’d like to make a guess on this. I’d just make one guess. Take Judge Arnold’s own career. He disagrees with me strongly on this appraisal of his own background. But I would guess right now that he did a far more effective job in the Executive establishment as the Assistant Attorney-General in charge of the Antitrust Division than he could have done doing about the same job as Chairman of the Federal Trade Commission.
ARNOLD: Well the difference was of course the Attorney-General could stop me, and did on occasions, and if I had been head of the Federal Trade Commission he couldn’t.
SCHWARTZ: Yes, that’s the point. Nobody can stop you if you are in an independent commission, unless you are willing to be stopped. You can act in a manner completely iso¬lated from improper pressures and influences. The problem is that these men can be bought, bought and—
ARNOLD: I don’t mean to intimate that I was im¬properly stopped. Very likely there were bad mistakes I…from making.
HEFFNER: Well, let me ask Professor Schwartz this question. It seems to me that in your book, Professor Schwartz, you seemed to talk about the impossibility realistically of being inde¬pendent of the Executive, and now you seem to say that one can be.
SCHWARZ: Hell, you see, under the present arrangement, the present system, Mr. Heffner, the commissions are theoretically independent of the Executive. But they are wholly dependent on the Executive for clearance of budgets through the Bureau of the Budget; they are dependent on the Executive for ap-pointment and tenure of chairmen, with one exception. The chairman has control over personnel. The Executive through the control over budgets and control over chairmen and personnel can influence the agency tremendously…pointed by the White House and that he will bold effice only so long as the White House is willing to let him hold he is bound to be influenced if there is a phone call from the White House. And this is true whether the call at the other end is Sherman Adams or one of his predecessors under a prior Administration. The system lends itself to improper influences. I use the term improper because anything designed to influence their independence in these judicial-type decisions is wholly contrary to the theory of our system.
HEFFNER: You seem to agree with Professor Jones, then.
JONES: I think that there is another disagreement that we have.
SCHWARTZ: Well, there’s no agreement here, Mr. Heffner, because I feel if you put them in the Executive then the pressure would be there without any problem. Professor Jones talks of independence if your superiors back you; but how will they back you if the Administration wants something done badly enough and you are completely under their thumb?
JONES: This is exactly the point I’m making. It may be an old-fashioned point of view, but I think that since political responsibility is entire Executive power ought to be entire, and that — leaving Mr. Sherman Adams out of it — if there are important reasons why the federal government through the office of the President believes that certain actions should be taken, say, in relation to monopoly control, or in relation to the regulation of the railroads I think it ought to be able to control the commission. I think the notion of the fourth department of government that the independent agency represents is a thoroughly unsound notion governmentally.
SCHWARTZ: Well, I may say, Professor Jones, I was of that opinion very strongly before I went to Washington. I had written to that effect. But I feel completely the other way now because I have seen these influences at work.
ARNOLD: Well, obviously you can’t say that in view of the fact that the Interstate Commerce Commission was set up to prevent the abuse of administrative control, and so was the SEC, and so was every one of these commissions; and you know, Executive control is purely political, and at least the commission is one step removed. And Bernard Schwartz could at least create a little public indignation when Sherman Adams calls up a commissioner. I think your position is completely untenable.
JONES: You mean mine?
JONES: I would like to give a nice example one or two. My own time goes back a little further; but take one or two of the regulatory commissions. I can think in the days immediately before the war of certain steps of economic mobilization that everyone seemed to agree had to be taken, on which the independent agencies were found dragging their heels because there wasn’t anyone who could tell them what to do on a matter that I think should have been decided at the highest Executive policy level and not by some little independent dominion existing in the whole area of government.
ARNOLD: I don’t know what you are talking about economic mobilization, but I do know that when it becomes a quasi-judicial function to determine who gets a radio or television station and who doesn’t, it ought to be done independently of a political administration.
JONES: Would that include independently of the influence of the responsible Congressional committees?
ARNOLD: Certainly. I don’t think the Congressional committees have had much influence. I think it has been the Administration has had influence over these commissions.
SCHWARTZ: Well, I would disagree. I think a great part of the problem, maybe the major problem, is the fact that Congress is never an uninterested party in these cases. Congressmen have intervened in cases before…judicial cases. Members of the very committee which has been investigating these agencies have been involved both personally, financially, and also by intervening. You see, this whole thing we can say strikes a blow at good government to have improper intervention, but from the point of view of the average Congressman it’s also a very succulent political plum.
HEFFNER: Judge Arnold, may I ask you whether when you were in Washington calls came through that you might—
ARNOLD: Well, they always call up. It seems to me that Mr. Schwartz is living in kind of a dream world, Congressmen are going to represent their constituents, and if that be a foe of good government of the United States we better go to some other kind of government. I doubt very much the seriousness of that problem.
HEFFNER: Yes, but if the pressures are going to come — and it seems to me that everything that has been said here today has indicated that there are pressures, and they are going to come whether they come from the Administration or they come from Congress or they come from other sources –wouldn’t it be desirable to have some responsibility as Professor Jones suggests?
ARNOLD: Professor Jones suggests no responsibility, no independent responsibility. He suggested a political body, the administration take over.
HEFFNER: But what else can be responsible?
ARNOLD: At least an independent commission.
HEFFNER: But it seems to me that everyone has been talking about independent commissions and no one here today has indicated that there is any independence whether from the Con¬gress or from the Administration.
ARNOLD: There’s independence, excepting they are subject to maybe not being reappointed. But there is absolute in¬ dependence outside of their fears of not being reappointed, Pro¬fessor Jones.
JONES: Well, yes. It seems to me what Judge Arnold is suggesting is fundamentally that the principles of sound administration in any sphere of life should not apply in government because government is politically chosen. Now the line of responsibility in the federal government service has to run up to the President and his office, and to say that there are some functions on which the responsibility should not be in that line but in some other independent line seems to me kind of inconsis¬tent with the basic theory—
ARNOLD: Well now, should the line of whether a railroad charged a fair rate or not- run up to the…
JONES: I think the organization — the individual question of course is going to be decided at some lower level since not everything can be done by the direct governmental office.
ARNOLD: Should it run up to the President’s of¬fice? Why shouldn’t the President be divorced from it?
SCHWARTZ: Well, why shouldn’t the Administration be entirely divorced? I think with all respect that you’re confusing functions. In so many areas these agencies decide cases between litigants. Take the average television case where two or more applicants are applying. On the one side you have a member of one political party, a newspaper supporting one party; on the other a newspaper supporting the other party. Is there any chance that a decision, which can be directly controlled from the White House, will not be influenced by the fact that one of the applicants supports the Administration?
JONES: There certainly is if your deci¬sion… people down the line have the spine to stand up to an oc-casional inquiry.
ARNOLD: Well now wait a minute, wait a minute. A commissioner may not be reappointed, and he may be worried about that, but a person in the…Attorney-General, has his resignation in his pocket and he can go out tomorrow. So the more independent person is the commissioner.
HEFFNER: But if he does go out tomorrow – and as a lay person I would just raise this question — if he does go out tomorrow we know why he does.
ARNOLD: Oh no we don’t.
HEFFNER: We know to whom he is responsible.
ARNOLD: No you don’t. You don’t know why he goes out. They just say please hand in your resignation. You don’t ever know why he goes out. I will give you twenty of them and there is not a line in the newspaper about it.
SCHWARTZ: Or there may be a friendly ex¬change of letters between the President and Mr. So-and-so.
HEFFNER: Yes, but just as you say, I think you agree that we all understand what the friendly exchange means.
ARNOLD: I don’t think you do unless you get something like the Secretary of Defense. When you are talking about communications and all that sort of stuff and somebody that resigned on account of some case in the Department of Justice, you never hear about it.
HEFFNER: Yes, but you gentlemen seem to be saying — Judge Arnold and Professor Schwartz seem to be saying we’ll get independence this…
ARNOLD: No. For instance, if a commissioner were forced out you would hear the headlines. If an Assistant Attorney-General or a special assistant to the Attorney-General were to resign you would hear nothing about it. But if any kind of a commissioner were—
JONES: I just want to get one other ques¬tion in. This suggests a new kind of government organization that we might call the Arnold Plan, by which all the Assistant Attorneys¬ General and other Assistant Secretaries also enjoy this independence.
ARNOLD: No, I am not for it.
JONES: So that if they are forced out there will be a newspaper story about it.
ARNOLD: Oh no. Oh no. I do not think so. I think that we are engaged in the prosecution of cases for the govern¬ment. We are attorneys for the government, and certainly we should resign if the President doesn’t like the way we prosecuted it. But here are certain things which are between A and B. Who gets the right to a television station? And that should not be decided by them.
HEFFNER: All right, but now let me ask Pro¬fessor Schwartz — we have been talking about the desirability of independence; it seems to me that from reading “The Professor and the Commissions,” and reading the newspapers over a year ago, you talked a great deal about the lack of independence. Now how do you explain this? You have a supposedly independent system. What are you going to do about it if you don’t accept Professor Jones’s assumption that direct responsibility and a denial of the myth of independence be exacted of us?
SCHWARTZ: Well, I think the answer is to try to insure that there is real independence. The problem arises not because we try to make them independent but because we have not given them the conditions for independence. In the first place, they exercise such tremendous influence. Every one of the cases we have been talking about in¬volves literally the giving of millions of dollars. When you give a TV channel to a successful applicant you make him a millionaire. The power is so great; there are no standards in the…to govern their decisions. They are almost completely at large. Charles Evans Hughes said candidly once, the Consti¬tution is what the judges say it is. If we were equally candid we would have to say the law in this area is wholly what the com¬missioners say it is. Now that being so there is bound to be pres¬sures and influences. But we have got to see that these men are in a position where they can be truly independent. Remove…House control completely. Remove Congressional influence completely by passing a code of ethics requiring all contacts in pending cases and actual cases to be open and aboveboard, and en¬ force that code by criminal sanctions. Covenants without the sword, said Thomas Hobbes, are but empty words.
HEFFNER: It sounds like Judge Arnold’s refer¬ence before to a sanitary cordon here, it sounds as though you were going to try to create, that you do not trust the men who will serve on the commissions; you’re trying somehow or other to guar¬antee something that you don’t really believe.
ARNOLD: I don’t think so.
SCHWARTZ: Not that I don’t believe.
ARNOLD: I think that this is certainly true of the courts. No, no sir, no Congress would call up a court.
SCHWARTZ: Mr. Heffner, an English judge once said about something like this… “not trust the whole bench of Bishops under such conditions.” With a respect for the Episcopate as profound as his I think the same remark can be made with regard to the commissions.
HEFFNER: Could you establish in the commissions the situation or the conditions under which you would trust that whole bench?
SCHWARTZ: Yes. I think you could. I would personally go to the extreme length of abolishing the commissions, vesting their judiciary-type functions in an administra¬tive court. Not the ordinary courts, they can’t do it; this would swamp them. But to set up a body purely to handle these cases vested with the tenure, the tradition, the dignity, and the in¬tegrity of most judges.
JONES: I want to make a double point on that, I think. I go back to my feeling that this is a failure of people. It is a deep moral failure of people. It is not a failure of a system, and you aren’t going to cure what I would regard as a profound and very distressing moral corruption either by making the man a judge or by making him a Bishop.
ARNOLD: Well, start out and name the people who have morally failed from Eisenhower down. Who are they?
HEFFNER: No names please — as the gentleman said.
JONES: I’m going to go on to the affirm¬ative side of this and suggest that you and I could both name some people who operated in exactly this kind of area of commission res¬ponsibility and did the job well.
ARNOLD: Well, when you talk about moral fail¬ure of people it seems to me you are talking about something that always happens. Now government is supposed to establish norms, so that moral failure — we will have bribery even on the United States Court of Appeals, so that bribery is not — it becomes un¬ usual. Now I would thoroughly agree with Mr. Schwartz, and I think maybe he has accomplished that. There should be a set of ethics so that it would be dangerous and unprofitable to do what happened in the Federal Communications. I don’t think it is necessary to set up a separate set of courts, but certainly I wouldn’t take your view and put it in the administrative.
JONES: I would guess that your effective set of ethics has got to be from the responsible head of the gov-ernment on down, not a self-imposed code of ethics that each one of these small principalities imposes on itself.
HEFFNER: Let me ask Professor Schwartz, in the forty seconds remaining, to make the point that he has been trying to make here, and I have been shutting him up. I’m sorry.
SCHWARTZ: Well, first of all I think we should look at the courts. Many years ago they were not what they are today, simply because they owed their tenure purely to the King. But you gave them conditions for independence. The example of bribery in the courts is the very rare thing today. And also a code of ethics –Judge Arnold says we have accomplished that. We have not. The Congress has been sitting on this proposition, and they will unless public pressure is really roused enough to force a code with teeth and applicable against Congressmen also.
ARNOLD: Well, I think some of these commissions are different than they were before certain investigations.
HEFFNER: That’s probably the best kind of note to end on. That’s all the time we have today. Thank you, Judge Arnold, Professor Jones, Professor Schwartz. We’ll be back on The Open Mind next week when for the third year in a row we will have our annual report on civil rights; and next week our guests will be — as they were two years ago –Father John La Farge; Mr. Irving Engel of the American Jewish Committee; and Mr. Roy Wilkins of the NAACP. See you then next week for our third annual report on civil rights.