[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
HEARING ON PERSPECTIVES ON HOUSE REFORM: LESSONS FROM THE PAST
=======================================================================
HEARING
before the
SUBCOMMITTEE ON RULES
of the
SELECT COMMITTEE ON
HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MAY 19, 2003
__________
Serial No. 108-5
__________
Printed for the use of the Select Committee on Homeland Security
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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SELECT COMMITTEE ON HOMELAND SECURITY
Christopher Cox, California, Chairman
Jennifer Dunn, Washington Jim Turner, Texas, Ranking Member
C.W. Bill Young, Florida Bennie G. Thompson, Mississppi
Don Young, Alaska Loretta Sanchez, California
F. James Sensenbrenner, Jr., Edward J. Markey, Massachusetts
Wisconsin Norman D. Dicks, Washington
W.J. (Billy) Tauzin, Louisiana Barney Frank, Massachusetts
David Dreier, California Jane Harman, California
Duncan Hunter, California Benjamin L. Cardin, Maryland
Harold Rogers, Kentucky Louise McIntosh Slaughter, New
Sherwood Boehlert, New York York
Lamar S. Smith, Texas Peter A. DeFazio, Oregon
Curt Weldon, Pennsylvania Nita M. Lowey, New York
Christopher Shays, Connecticut Robert E. Andrews, New Jersey
Porter J. Goss, Florida Eleanor Holmes Norton, District of
Dave Camp, Michigan Columbia
Lincoln Diaz-Balart, Florida Zoe Lofgren, California
Bob Goodlatte, Virginia Karen McCarthy, Missouri
Ernest J. Istook, Jr., Oklahoma Sheila Jackson-Lee, Texas
Peter T. King, New York Bill Pascrell, Jr., New Jersey
John Linder, Georgia Donna M. Christensen, U.S. Virgin
John B. Shadegg, Arizona Islands
Mark E. Souder, Indiana Bob Etheridge, North Carolina
Mac Thornberry, Texas Charles Gonzalez, Texas
Jim Gibbons, Nevada Ken Lucas, Kentucky
Kay Granger, Texas James R. Langevin, Rhode Island
Pete Sessions, Texas Kendrick B. Meek, Florida
John E. Sweeney, New York
John Gannon, Chief of Staff
Uttam Dhillon, Chief Counsel and Deputy Staff Director
Steven Cash, Democrat Staff Director
Michael S. Twinchek, Chief Clerk
______
Subcommittee on Rules
Lincoln Diaz-Balart, Florida, Chairman
Jennifer Dunn, Washington Louise McIntosh Slaughter, New
F. James Sensenbrenner, Wisconsin York
David Dreier, California Bennie G. Thompson, Mississippi
Curt Weldon, Pennsylvania Loretta Sanchez, California
Porter Goss, Florida Zoe Lofgren, California
John Linder, Georgia Karen McCarthy, Missouri
Pete Sessions, Texas Kendrick B. Meek, Florida
Christopher Cox, California, ex Jim Turner, Texas, ex officio
officio
(II)
?
CONTENTS
----------
MEMBERS STATEMENT
The Honorable Lincoln Diaz-Balart, a Representative in Congress
From the State of Florida, and Chairman of the Subcommittee on
Rules.......................................................... 1
The Honorable Jim Turner, a Representative in Congress From the
State of Texas................................................. 5
WITNESSES
Mr. Charles W. Johnson, Parliamentarian of the House of
Representatives
Oral Testimony................................................. 6
Prepared Statement............................................. 10
Mr. Thomas E. Mann, W. Averell Harriman Chair and Senior Fellow,
The Brookings Institution
Oral Testimony................................................. 28
Mr. Norman Ornstein, Resident Scholar, American Enterprise
Institute
Oral Testimony................................................. 30
Mr. Thomas E. Mann and Mr. Norman Ornstein
Prepared Statement............................................. 34
MATERIALS SUBMITTED FOR THE RECORD
Mr. Charles W. Johnson, Parliamentarian of the House of
Representatives................................................ 49
(III)
HEARING ON PERSPECTIVES ON HOUSE REFORM: LESSONS FROM THE PAST
----------
Monday, May 19, 2003
House of Representatives,
Select Committee on Homeland Security,
Subcommittee on Rules,
Washington, D.C.
The committee met, pursuant to call, at 5:29 p.m., in Room
340, Cannon House Office Building, Hon. Lincoln Diaz-Balart
[chairman of the subcommittee] presiding.
Present: Representatives Diaz-Balart, Dunn, Dreier, Goss,
Linder, Slaughter, Sanchez, Lofgren, McCarthy, and Meek.
Also Present: Representatives Cox and Turner.
Mr. Diaz-Barlart. Good afternoon. I would like to begin
this hearing welcoming Chairman Dreier. And I know other
members, Louise Slaughter, our ranking member, sent a message
that she would be just a little late but she intends to be
here.
I would like to welcome not only our distinguished
panelists, but all of our visitors to the first hearing of the
Subcommittee on Rules of the Select Committee on Homeland
Security. The mission of this subcommittee is an extraordinary
one and it is difficult, but it is one that we do not shy away
from.
Today the subcommittee begins a series of hearings. The
overall objective for our hearings is to solicit the insights
and recommendations of experts on Congress, including scholars,
both current and former Members of the House and perhaps former
administration officials.
The hearing today and the others that will follow are
designed to help and, in turn help, the select committee
fulfill the mandate given to it on the opening day of this
Congress in H. Res. 5, and I will quote the most relevant part
of H. Res. 5. ``The select committee is authorized and directed
to conduct a thorough and complete study of the operation and
implementation of the rules of the House, including rule X with
respect to the issue of homeland security. The select committee
shall submit its recommendations regarding any changes in the
Rules of the House to the Committee on Rules not later than
September 30, 2004.''
More than a decade has passed since the operations and the
organization of the House were last subjected to a major
review. That last thorough study was undertaken precisely in
1993 by the Joint Committee on the Organization of Congress on
which our own Rules chairman, a member of this subcommittee,
David Dreier, served as vice chairman. The select committee's
vice chairman, Jennifer Dunn, also served on the joint
committee. Although Congress was unable to enact a legislative
reorganization act in 1994, some of the recommendations of the
joint committee subsequently were adopted by the House.
As we all know, since the 1993 joint committee much has
changed in the Congress, in our country and in the world. And
like other extraordinary events in our history, such as the
attack on Pearl Harbor or man's landing on the Moon, we will
long remember what happened on September 11, 2001, when
terrorists attacked the homeland of the United States. It is in
response to September 11, 2001, that our being here can best be
explained.
At the urging of Congress, President Bush signed
legislation into law creating a new Department of Homeland
Security, the largest reorganization of the executive branch
since at least the establishment of the Department of Defense
in 1947. Now, it is the responsibility of this subcommittee to
assess whether the House and most especially its committee
system is organized effectively to address the many issues
associated with homeland security.
We undertake this assignment with no preconceived ideas or
preferred outcomes. We are open to all ideas and
recommendations. We may find, for example, that the current
standing committee structure is functioning as we wish it to
function, or we may come to the conclusion that the committee
system as it exists needs perhaps minor tinkering or
significant reform. There may be additional rules besides rule
X that might require our attention. My point is that the
subcommittee is willing and open to explore a wide range of
options and questions as we undertake our review of the House
rules as mandated by the House.
A fundamental objective of our hearings will be to provide
the members with background information and analysis on several
of the past House reorganization efforts. All of us need to
know what lessons or insights can be learned from what has
happened in the past. Were real reforms achieved or were some
of the boxes simply shifted around or committees renamed with
no significant improvement in how we conduct or business? We
also need to hear from experts who can perhaps identify other
major institutional reform areas that merit review and
attention by this subcommittee.
Our ranking member Louise Slaughter and I plan to include a
panel of former Cabinet Secretaries at today's hearing. We
wanted to consider their views on how they worked with the
Congress' committees. However, many of the people we invited
were out of the country or had conflicting engagements and they
could not be with us today, so we will try to schedule that
panel at a later date.
At this point I would ask any members of the subcommittee
for any opening statements. Mr. Dreier.
Mr. Dreier. Thank you, Mr. Chairman. Let me congratulate
you and our friend Mrs. Slaughter, with whom I just attended
the U.S.-canada conference this weekend. She is coming back
because she is actually participating in another subcommittee
hearing of this committee in Canada now, or I guess it is in
New York, where they are holding this meeting.
Let me say that this is obviously very, very important what
we are undertaking here. The mandate of this subcommittee as
well as the work of Mr. Linder, who chairs the Technology and
the House Subcommittee of the Rules Committee, will be
undergoing a thorough and complete study of the operation and
implementation of the rules of the House, including rule X,
with respect to homeland security. That is actually the
language as it was put forth that has led to the work of this
effort. We all know that rule X deals with the basically the
jurisdictional issue with the committee system. And Mr.
Chairman, let me say that, and I know I said this at our
opening meeting, and that is I think it is very important for
to us remain as open-minded as we possibly can. A lot of people
come with preconceived notions to this issue. And you mentioned
back in 1993 we worked on this. That was one of the challenges
we had then, was to try and be as open-mined as possible and we
know it is challenging when you deal with a wide range of
issues and, of course for all of us, personalities. So I hope
very much that we will be able to do that.
As you correctly pointed out, since the attacks of
September 11th our perception of national priorities has
changed dramatically. Terrorist attacks on our homeland
introduced a new sense of vulnerability to Americans and gave
Congress an imperative to act to protect the American people.
Congress responded with its passage of the Department of
Homeland Security legislation last year and with its formation
of homeland security appropriations subcommittees and in the
House this Select Committee on Homeland Security. We know that
our mission is to review all the rules and procedures of the
House to ensure that we are dealing with homeland security in
the best, most coherent way possible. And to that end let me
just say that I am very pleased that we are joined--well, Mrs.
Slaughter made it back. We are glad that she is here along with
my colleague Mr. Goss. You are right over here, Louise. Not
that I am in charge but it is hard for me to break that habit.
Let me say I am very, very pleased that we have the rare
privilege of having the great Parliamentarian of the House
Charlie Johnson as our first witness. As I said, I don't know
of another instance when a Parliamentarian has come forward to
testify before a committee in the House and I also want to say
that the staff of the Parliamentarian are extraordinarily e
capable, extraordinarily knowledgeable, and I have a lot of fun
with them, often late at night because the Rules Committee
meets late at night. But I do want the record to show that I
have a great appreciation for the expertise and the
professionalism of the Parliamentarian and his staff.
I also want to say that two friends with whom I worked very
closely a decade ago on the Joint Committee on the Organization
of Congress are going to be testifying, Norm Ornstein and Tom
Mann. I am looking forward to their thoughts on this and
congratulate you for the leadership you are showing on this.
Mrs. Slaughter, I mentioned you before you came in. Thank
you for your hard work on this. I want to again thank Mr.
Linder, whose subcommittee is focusing on these issues as well.
Thank you, Mr. Chairman.
Mr. Diaz-Barlart. Thank you, and we are very pleased to
have our ranking member Louise Slaughter, who has joined us
after having been present at another hearing today, and thank
you, Louise. You are recognized.
Ms. Slaughter. Thank you, Mr. Chairman. We did have a
spectacular morning. We had a press conference looking over
Niagara Falls on a glorious day this morning. So that was
really quite nice. But I am happy to be here with all of you
this afternoon.
Like the chairman, I am glad the work of the subcommittee
is getting underway. We have several excellent witnesses who I
have known for some time. Back in my old venture in trying to
save the rules of the House, you were very helpful. I am
anxious to hear what they have to say about whether or to what
extent the House needs to revise its organization and its
procedures and structures. As a veteran of past reform efforts,
I know the subcommittee has been handed a difficult assignment.
To change the procedures, practices or routines of the House is
no easy matter.
Members often have a vested interest in the status quo or
if not a vested interest, then members may have learned to
accommodate whatever deficiencies they may encounter. For all
the headaches and heartaches that advocates of reform often
face, it is still a worthwhile endeavor for the House to step
back and periodically study and review its organization.
There is always room for improvement in any institution,
especially in a place as large and as complex as the House of
Representatives. That is why I am particularly interested to
hearing what today's witnesses have to say and what insights
they can share with us about how they might improve the
effectiveness of the House of Representatives.
Drs. Mann and Ornstein were the lead authors a decade ago
of a major study entitled ``Renewing Congress.'' Is renewal
again a top priority for the House? And our Parliamentarian
Charles Johnson just issued a new version of House Practice, a
renewal project that may also stimulate in Mr. Johnson some
ideas for change.
Our mandate under H. Res. 5 is broad, as the chairman
indicated, a study to review House rules, especially rule X,
dealing with our committee systems, to determine if they need
change or revision so that the House can more effectively
handle issues of homeland security.
This is a large assignment and our time is relatively
short. We all have other assignments and many other duties and
functions in the House. I suggest that as we begin our several
rounds of hearings we also begin to think about what should be
the principal focus of our attention. We cannot take on every
reform area that our various witnesses might suggest. Simply
dealing with the committee system is a huge undertaking. As we
proceed in our work, I believe it is very important that we
hear not only from outside experts and former Members, but also
from sitting Members, a sitting Member who wants to testify or
submit testimony for the record.
We all know that the House has many committees and
subcommittees and scores of other work groups and a complex
array of rules and procedures. Our colleagues know the
strengths and weaknesses of this institution as few others do.
We need to hear from them in this process. I know our chairman
will invite all of them to appear at this point, but I want to
underscore the contribution that they can make. At some point
we might want to solicit their views through a questionnaire or
conduct personal interviews with a selected number of them.
Mr. Chairman, the time we spend in hearings and study
should provide the subcommittee with ideas on how to approach
particular problems areas and how they may be resolved. Our
hearings may very well lay down some important markers, the
route that we should take to improving, strengthen the House.
Mr. Diaz-Barlart. Thank you for your remarks, very
thoughtful, and I appreciate them very much.
Mr. Goss.
Mr. Goss. Thank you, Mr. Chairman. I actually came to hear
what the witnesses had to say. So I will thank you very much
for this great opportunity to come and hear some excellent
witnesses on a matter that we care about. I appreciate the
remarks that have been made by my other colleagues and
associate myself with them and yield back.
Mr. Diaz-Barlart. Ms. Lofgren.
Ms. Lofgren. I would also like to hear from the witnesses,
so I will defer a statement.
Mr. Diaz-Barlart. Mr. Linder.
Mr. Linder. Nothing.
PREPARED STATEMENT OF THE HONORABLE JIM TURNER
The Select Committee on Homeland Security will consider many
matters over the coming months that will bear directly on the security
of the American people. Nonetheless, one of most important
responsibilities of this Committee will be the subject of this
evening's hearing--changes that ought to be made to the Rules of the
House in response the creation of the Department of Homeland Security.
One might ask how mere rules could possibly be as important as the
substantive issues that have and will come before this Committee. The
answer is that our rules will determine the character of relationship
between Congress and the new Department. And this relationship may very
well have a strong bearing on the success or failure of the Department.
Let us keep in mind the challenges facing the Department of
Homeland Security. It must take 22 separate agencies, which all had
different cultures and operational structures, and merge them into a
coherent whole with a common mission of protecting the homeland. This
will be no easy task. But this task is made even more difficult by the
current congressional committee structure.
As the scholars on our panel will tell us tonight, the Department
of Homeland Security must currently answer to dozens of House and
Senate Committees and scores of subcommittees. This structure not only
places a serious administrative burden on the Department's senior
management, but it also pulls a department that it trying to unify
itself, in multiple policy directions. This result is not good for the
Department, for the Congress, and ultimately, for the country.
I am well aware that the history of congressional reform movements
suggests that efforts to make radical changes to the House's committee
structure have most often ended in failure. But we must all keep in
mind that the September 11 attacks on our homeland require a new
approach to governing. We have taken the first step by undertaking the
largest reorganization of the Executive Branch in half a century.
Congress must now take the next step of adapting to the reality of the
new Department of Homeland Security. To its credit, the Appropriations
Committee has already responded. The authorizing committees must now
also respond. Tonight's hearing marks the beginning of that process and
I welcome the distinguished panel.
Mr. Diaz-Barlart. Thank you all very much. I am honored
that our lead off witness is someone not only we all know but
who has an institutional memory and expertise about the House
that is probably unmatched, and that is Charles Johnson, the
House Parliamentarian. Mr. Johnson has been the Parliamentarian
since 1995, but has served in the Office of the Parliamentarian
for four decades. It is truly a privilege to have you here
before us, sir, and without objection your remarks will be part
of the record and you are recognized.
STATEMENT OF CHARLES W. JOHNSON, PARLIAMENTARIAN OF THE HOUSE
OF REPRESENTATIVES
Mr. Johnson. Thank you, Mr. Chairman. The five pages of
remarks I hope are disseminated in a timely way. I don't plan
to repeat much of that, just to highlight a few things and
then, to maximize your time, Mr. Chairman, and the members, to
be available for questions.
The chairman of the Rules Committee couldn't remember when
anyone had ever testified from our office. My beloved
predecessor William Brown testified almost 10 years ago to this
day before his joint committee.
Mr. Dreier. I remember that now.
Mr. Johnson. So whether it was forgettable testimony, it
shouldn't have been. Bill approached it with the same
trepidation as I approach this, because our function is to
serve all the Members in an advisory capacity, beginning with
the Speaker clearly, and not necessarily to be advocates. As I
was asked to give some background about past reorganization
attempts, I have attempted through my submission, and
particularly through the appendices A through G that I believe
you all have, to give an indication of how difficult
reorganization attempts have been, especially through select
committees. Just to elaborate on some of that prepared
testimony for a few minutes and then, as I say, to be available
to questions, both about past jurisdictional and reorganization
efforts and more precisely now about the enactment of the
Homeland Security Act and the consequent reorganization efforts
that you are mandated to conduct.
Let me just begin by going back to 1974 very quickly.
Appendix A is a summary in 1993 of jurisdictional overlaps
which we have updated to a certain extent. That is across-the-
board jurisdictional overlaps. What I want the committee to
understand is where we are in the referral process, where we
have been since 1974. I use the word ``inadvertent'' in my
prepared statement to suggest that the House on that watershed
day of October 8th, 1974, rejected a major organizational
attempt through the so-called Select Committee on Committees,
chaired by Richard Bolling, later to become chairman of the
Rules Committee, but maintained within the recommendation that
was finally adopted a referral mechanism that has proven
difficult, now with almost 30 years of precedent behind it. One
of the submissions here is an excerpt from our most recent
House Rules and Manual which shows the variations of referrals
that Speakers have made. The whole premise of the Bolling
select committee was that there be for the first time beginning
in 1975 the authority for the Speaker to make multiple
referrals. Until that point the Speakers were only required by
tradition and by the rules of the House to make a referral to
one committee.
My first 10 years as an Assistant Parliamentarian were
spent to a great extent trying to discern primary jurisdiction
on every bill referred. It wasn't always easy but we collected
files, we had examples. We always made recommendations to the
Speaker based on precedent if we could find similar bills,
similarly referred. We had guidelines indicating what were
major committees and what were perhaps incidental or secondary
committees. But when the organization came to the attention of
the House, the House in its wisdom retained more or less the
existing fragmentation of committee jurisdictions.
Submission B is a summary of those rules changes. It was
summarized in a little red book prepared by the so-called
Hansen-Burton coalition, primarily of the Democratic Caucus at
the time. This OSR sub-unit of the Democratic Caucus served as
the review entity of the Bolling select committee's
recommendations, and they were more focused in their
substitute. They retained this notion of multiple referral in
their alternative recommendation, describing it as merely
giving the Speaker discretion.
Now, the Speaker's discretion comes in various shapes and
forms. It is not similar to the absolute power of discretionary
recognition that the Speaker has on the floor, but it is guided
by the language of clause 2 of rule XII that suggests that
referrals must be made to the maximum extent practicable, that
is where the motion of discretion comes in, to all committees
with legitimate jurisdictional claims. The precedents that have
evolved for the 30 years which are shown in our submission C,
it is just an excerpt from the House Manual, show the variety
over those 30 years of referrals that have been made. And the
one constant, is that our advice has been based upon the
consistent tradition of the House, which has been to
depoliticize the referral process.
Now, the role of the Speaker is multifold, as you all know.
He is the presiding officer of the House, he is the political
leader of the majority party. But in his role as presiding
officer he is required under the rules of the House to make
referrals to committees. Both before the multiple referral
change and since, all Speakers without exception have delegated
to the Office of the Parliamentarian the authority to make,
render advice which they will abide by on committee
jurisdiction.
Now, that is not to say that there is no element of
political consideration given on referrals. Certain elements
may be injected. When it comes, for example, to determining the
length of referrals, Speakers now have the ability to put time
limits on all referrals. They often exercise the authority to
put time limits on sequential referrals. The decision was made
by those of us in the Parliamentarian's office, with the
approval of Speaker Albert and then Speaker O'Neill, to defer
decisions on referral to the committees that we discerned to be
relatively incidental to the primary committees of
jurisdiction.
So to a great extent referrals that you will read in the
record on opening day do not reflect decisions that our office
has made for the Speaker on sequential referrals where we feel
a committee has a relatively incidental jurisdictional claim,
waiting instead to discern whether or not the primary committee
or committees will recommend a certain policy change. There are
so many examples of sequential referrals where the decisions
have first been deferred and then ultimately made that the work
product of that primary committee should then be sequentially
reviewed. That is basically the process today. I mention it not
just from an historical perspective because it describes where
we are right now in the referral process to your Select
Committee on Homeland Security.
As you know, the Speaker has been mandated by the opening
day rules to make referrals as determined by the Speaker of
measures, bills and resolutions. So it is more than an
oversight function that your full committee and by extension
your various subcommittees will be performing.
Submissions F and G are summaries of the various elements
of the Homeland Security Act of 2002 over which various
standing committees of the House in this Congress and in last
Congress can legitimately claim jurisdiction. So I will call
your attention--as you have time to read those insertions,
those appendices G and F, you will find that there is
considerable overlap but it goes to the basic decision that the
House made in the last Congress as it created the Select
Committee on Homeland Security to receive recommendations from
the various standing committees. That was about a month and a
half period just about a year ago at this time when 12 standing
committees--11 standing committees and the Permanent Select
Committee on Intelligence submitted recommendations to the then
five and four Select Committee on Homeland Security, comprised
as you know primarily of leadership on both sides. Those
recommendations, many of which were implemented in the House
passed version and in the final version of the Act, are worthy
of your perusal at this point, not only the recommendations
that were implemented but the recommendations that were not, at
least then, implemented.
We have also submitted an index, a table of contents, what
is soon to be the very voluminous hearing record of last year's
select committee on committees, because it will show the
recommendations to the extreme detail of all of the standing
committees and intelligence select committee to the Select
Committee on Homeland Security, and analyses of those
recommendations, as I say many of which were implemented, more
of which were not.
So here you are today as a committee which has legislative
jurisdiction over, quote, ``matters relating to the Homeland
Security Act of 2002.'' What do those words really mean as far
as our responsibility through the Speaker to make referrals and
submission? Appendix F will give you an indication of the 10 or
so bills that have been referred so far in this session. There
will be the Technical Corrections Act, for example, referred to
the select committee which has been reported and which has not
had to undergo a sequential referrals. There are other bills
where the select committee is primary on the bill.
As the chairman knows, when the Republicans became the
majority party in 1995, a mandate was placed on the Speaker to
refer bills, to choose a primary committee. Only in this
Congress was there an extraordinary exception written in where
there are such jurisdictional overlaps that the notion of
primacy really isn't that important. The notion of primacy
isn't as essential as the lobbying community and others might
believe because additional original committees can get started
on oversight and on the legislative function of ``matters
within their respective jurisdictions.'' That admonition on
every introduced bill is de facto a rule that governs various
standing committees' considerations of matters within their
respective jurisdictions. So as bills come in, consolidated,
complicated bills where we may have had to choose a primary
committee, yet committees B, C and D may be additional initial
committees but they are not restricted in terms of time,
conducting oversight or producing a legislative work product.
Even if committee A, the so-called primary committee, reports,
which would then force the Speaker to make sequential referrals
or to impose time limits on the additional original committees,
those times can be sufficiently long to in effect turn
committees B's jurisdictional claim into truly a primary claim.
So this notion of primacy, while it makes sense being in the
rule, forces us to try to understand each bill as to where the
primary emphasis is being placed, yet there is a whole lot of
flexibility with respect to the other committees.
When you superimpose a new decision-making process; namely,
a select committee which has jurisdiction over ``matters
relating'', some may say, well, if it is not in last year's
bill, if you are not directly amending language already in last
year's law, it doesn't necessarily relate. Others, as reflected
in referrals already made, suggest that matters which should
have been consolidated into the department and even though they
weren't, are still ``matters relating to.'' There is a
legitimate jurisdictional claim in that respect.
Where we are headed jurisdictionally, Mr. Chairman, is not
for me to predict. There may be others, political scientists
and certainly Members, who will want to focus on whether or not
a standing committee with consolidated jurisdiction in this or
the next Congress or in a future Congress makes more sense than
the perpetuation, if at all, of a select committee with similar
jurisdictions. There are clearly options.
Let me just invite all Members, whether it is the
distinguished group here or any Member of the House, to
understand that oversight is a difficult operation. There isn't
enough time in the week. I have facetiously commented here on
doing oversight on a Monday and with certainly a quorum
present. This isn't just two members to take testimony, this
participation is impressive. It needs to be kept in mind that
oversight is painstaking and it is a collegial function that
Members should conduct. Staff can compile and, can advise, but
it is the Members' attention to detail and the way it dovetails
into the need for a revitalization of the authorization
process, not just confined to homeland security, all of those
issues are going to be presented to you in considerable detail.
But ultimately I believe whether you conduct oversight or
whether you legislate, it becomes a matter of will. The rules
currently allow sufficient oversight. You don't have to worry,
I don't believe, about new rules empowering committees to
conduct more oversight. The rules are there. It is a matter of
will and finding the time.
Our office nonpartisan, we make referrals based on
precedents, and the Speaker has taken a very personal interest
in referrals of bills in this Congress. He made the
extraordinary presentation, as you will recall, before he took
the oath of office, reminding the Members that a rules package
not even yet presented would create this select committee. He
advised Members that the standing committees would retain
oversight and legislative jurisdiction. So he laid down a
marker before he even took the oath of office.
Then Chairman Dreier, managing the rule, supplemented that
commitment both to the standing committees conducting oversight
and legislative responsibility, but then inviting this new
select committee to be the eyes and ears of the Congress and to
exert legislative jurisdiction where appropriate, as determined
by the Speaker. So those are terms of art where that I can't
fully predict the patterns of referral--each bill obviously
will be reviewed on its merits. Our office is available on a
sustained basis to your panel and to all the Members to give
advice, we hope consistent advice, but I can assure you
nonpartisan advice, if not the best advice, but nonpartisan
advice on patterns of referral because the referrals that are
being made now may well become precedent in future Congresses.
So with that, I will certainly be available for questions.
PREPARED STATEMENT OF CHARLES W. JOHNSON
Mr. Chairman; It was almost precisely ten years ago (on May 18,
1993 to be exact) that my beloved predecessor as Parliamentarian, Mr.
Wm. Holmes Brown, appeared before the Joint Committee on the
Organization of Congress to testify regarding a broad range of issues
relating to floor deliberations and scheduling. In appearing be fore
your subcommittee today, I have been asked to bring to your attention
some of the relatively recent difficulties that have confronted the
House as it has considered committee jurisdictional reform, as well as
observations concerning current jurisdictional overlaps relating to the
issue of Homeland Security.
Included in Mr. Brown's prepared statement and oral testimony on
that occasion were references to a complicated development in committee
jurisdictions in the House as of that date, especially since House
consideration of the Committee Reform Amendments of 1974 and the
multiplicity of referrals which had resulted since the Speaker was
mandated to begin multiple referrals. On that occasion Mr. Brown
inserted. in the Joint Committee's hearing record a chart depicting
``major committee jurisdictional overlaps.'' I resubmit that chart (A)
for your hearing record, with the reminder that many subsequent
jurisdictional overlaps have emerged since 1993, too numerous to be
documented here. I also submit a second chart (B) showing the mini mal
jurisdictional realignments resulting from the adoption on October 8,
1974, of the Democratic Caucus originated ``Hansen'' substitute for the
``Bolling'' select committee consolidations, for your committee's
hearing record. Suffice it to say that on that occasion in 1974, the
House retained fragmented committee jurisdictions within rule X, but
almost by inadvertence included a multiple referral mandate on the
Speaker which had been taken from the ``Bolling'' Committee's
recommendation. The only change was to strike a mechanism for appeal of
the Speaker's referrals to the Committee on Rules. There is no
discernible legislative history to indicate that the House, by adopting
the ``Hansen'' substitute deliberately chose to impose the requirement
for multiple referrals while retaining essentially the same
fragmentation and overlap of committee jurisdictions as had existed up
to that point, beyond an intent to strip the Rules Committee of any
appellate authority over Speaker's referrals. After all, the
``Bolling'' recommendation had suggested a procedure for multiple
referrals only in the unlikely event that the consolidation and
modernization of jurisdiction recommended by the select committee
failed to fully place within one committee the jurisdictional issues
presented by any particular bill. I also submit citations (C) from the
House Rules and Manual (sec.816) showing the variety of referrals which
have been made by Speakers since 1975, including three occasions in the
1970s when the House established ad hoc select committees to receive
recommendations from standing committees on matters relating to energy
and the outer continental shelf. It should also be noted that the use
of ``task forces'' consisting of various House committees and reporting
their work pro duct to the Rules Committee became popular in recent
years and is well documented in CRS Report for Congress RS20421, dated
Dec.28, 1999.
On one subsequent occasion since 1974 the House in response to the
recommendations of a select committee realigned standing committee
jurisdictions, but not without some difficulty. In 1980, the House
considered a resolution reported from a Select Committee on Committees
which had recommended the creation of a new standing Committee on
Energy, partially in response to the energy crisis and the
establisbment of the Department of Energy and consequent reorganization
in the executive branch The Select Committee's recommendation was
amended on the House floor to provide instead for an enlarged
jurisdiction to be vested in the Committee on Interstate and Foreign
Commerce, (renamed Energy and Commerce) with new referrals of
jurisdiction as the primary energy committee including jurisdiction
over ``general management'' of the Department as an entity, but this
action was accompanied by a memorandum of understanding attempting to
clarify the resulting jurisdictions of the Committees on Science and
Technology, Interior and Insular Affairs, Armed Ser vices and Foreign
Affairs. In other words, the Select Committee's recommendation to
create a new standing committee on energy was replaced by retention of
fragmented jurisdiction among several existing standing committees.
Other realignments of standing committee jurisdictions have
occurred at the organization of new Congresses, where the majority
party conference has recommended jurisdictional changes as part of the
adoption of rules on opening day. I recall the creation of the
Department of Transportation in the late 1960s. Incrementally there
after, the House in adoption of its rules from the majority caucus on
opening day accomplished a consolidation of committee jurisdiction.
Whereas at the time of creation of the Department, Public Works had
jurisdiction over highways and civil aviation, Banking had jurisdiction
over urban mass transit, Commerce had jurisdiction over rail roads and
Merchant Marine and Fisheries had jurisdiction over maritime
transportation, those various aspects have been gradually consolidated
under the umbrella of the Committee on Transportation and
Infrastructure following the demise of certain transportation
regulatory independent agencies that remained in place after the
creation of DOT. The House Rules and Manual (sec.739) shows the dates
of those transfers as eventual responses to an executive
reorganization.
The two most recent significant changes were in 1995, when the
standing Committees on the District of Columbia, Merchant Marine and
Fisheries, and Post Office and Civil Service were abolished and their
functions transferred to other existing committees, and in 2001 when
securities and insurance generally jurisdictions were transferred from
the Committee on Energy and Commerce to the Committee on Financial
Services. Neither of these recommendations emerged from a select or
joint committee established by the House. In fact, the Joint Committee
on the Organization of the Congress, in its wide ranging report to the
House (H. Rept. 103-413) refrained from any suggestions as to House or
Senate committee jurisdictional realignments, Rather, the joint
committee only recommended that the Committee on Rules might consider
subsequent abolitions of committees if ``membership on a committee
falls below half if its level during the 103rd Congress.''
In the last Congress a predecessor Select Committee on Homeland
Security was established (H.Res.449) to receive recommendations from
the several standing committees of legislative jurisdiction with
respect to the creation of a new Department of Homeland Security. I
submit for your record a table of contents (D) of the materials soon to
be published as the hearings of that select committee, including the
legislative recommendations of the eleven standing committee and one
permanent select committee (on Intelligence). Your committee will be in
possession of these hearings when they are published. From these
extensive materials, as well as from the testimony in those hearings,
you will be able to glean the respective jurisdictional concerns as ex
pressed by those committees in the last Congress, which include
concerns about dual missions of agencies such as the Coast Guard,
Customs Service, and Immigration and Naturalization Service. As you
know, the Select Committee on Homeland Security in the last Congress
incorporated some of those legislative recommendations into the bill H
.R. 5005, while leaving other recommendations for possible subsequent
consideration. I also submit a list (E) of the various committee
activity reports in the last Congress which further express the
concerns of those committees.
On the opening day of this Congress Speaker-elect Hastert made the
following statement to the House before taking the oath of office:
``Later on today, we will vote to create a Select Committee on Homeland
Security. Members of this select committee will oversee the creation of
the Department of Homeland Security to make certain that the executive
branch is carrying out the will of the Congress. This select committee
will be our eyes and our ears as this critical department is organized.
The standing committees of the House will maintain their jurisdictions
and will still have authorization and oversight responsibilities. This
House needs to adapt to the largest reorganization of our executive
branch in 50 years, and this select committee will help us make this
transition.''
Later on opening day Rep. Dreier, in debating the proposed rules
package, stated:
``Mr. Speaker, section 4 of the resolution is very important and
significant, and is aimed at ensuring effective oversight of a crucial
national priority, and that is what was discussed in the Speaker's
address to us namely, homeland security. The security threats to our
Nation are real and dangerous, Every branch of government, including
the Congress, must be an integral part of the homeland security effort.
``In that regard, section 4 of the resolution establishes a Select
Committee on Homeland Security for the 108th Congress with both
legislative and oversight responsibilities.
``The select committee would have legislative jurisdiction over
matters that relate to the Homeland Security Act of 2002 FL. 107-296.
As the Act is the organic statute creating the new Department of
Homeland Security, it is anticipated that the select committee would be
the committee of jurisdiction over bills dealing with the new
Department.
``Further, the select committee would have jurisdiction over
legislation amending the Act such as a bill making technical
corrections to that Act. In addition to the committee of primary
jurisdiction, the Speaker would have the authority to refer bills to
the select committee as an additional committee, either initially or
sequentially. Otherwise, the existing jurisdictional rules of the House
would continue to apply during the 108th Congress.
``The select committee would have oversight responsibility over
laws, programs and government activities relating to homeland security
and is intended to serve as the pri maw coordinating committee of the
Rouse.
``Mr. Speaker, until the new Department of Homeland Security is up
and running, it is difficult to predict how best to reflect legislative
oversight and authorization functions for the Department in the House,
Furthermore, during this transitional period, it is crucial that the
White House and the new Department's leadership have a central point of
contact with the House.
This new select committee will provide this interim capacity.''
Mr. Chairman, this recitation of the recent jurisdictional history
of the House, while underscoring the complexities of multiple
referrals, should be read in light of the consistent tradition of the
House to depoliticize the referral process. To this end all recent
Speakers have delegated to the Parliamentarian the authority to
determine the validity of committees' jurisdictional claims, based on
consistent interpretations of Rule X and upon the application of past
referrals as precedent. It is apparent that Rule X (which establishes
standing committees'jurisdictions) does not at this time textually
mirror executive branch reorganizations in the second half of the
twentieth century or substantive issues arising in the modem world!
Precedent, practice and understandings recommended by the
Parliamentarian in consultation with all the committees of the House
have managed this disparity or asymmetry through a mechanism of
multiple referrals in a nonpartisan way.
At this point I would include a chart (F) showing the few referrals
made in the 108th Congress of bills to the new Select Committee. On May
15, 2003, the Select Committee filed its initial report with the House
on HR. 1416, making technical corrections in the 2002 Homeland Security
Act, which bill was not referred to any other committee. I also include
a chart (G) showing some of the jurisdictional oversight and
legislative authorities retained by the various standing committees
over functions and organizations of the new Department of Homeland
Security. It should be emphasized, as stated by Rep. Dreier, that under
the Speaker's referral authority both as stated in the standing rules
and specifically in section 4 of H.Res,5, the Speaker has discretion to
refer matters either initially or sequentially to the select committee.
Each introduced bill will continue to be scrutinized to discern the
legitimate jurisdictional claims of the standing committees and of the
select committee, either on an initial or sequential referral basis.
To this end, five permanent committees of the House have
reorganized themselves in this Congress to create subcommittees
specifically having jurisdiction over matters relating to homeland
security. They include the standing Committees on Appropriations, Armed
Services, International Relations, and the Judiciary and the Permanent
Select Committee on Intelligence.
I believe that the rules of the House provide adequate authority
for all committees to conduct effective oversight over matters within
their respective jurisdictions. Section 4(c) of H. Res. 5 in the 108th
Congress incorporates by reference those provisions of rule X which
govern standing committees and subcommittees and makes them applicable
to the select committee, Therefore effective oversight becomes a matter
of institutional and ultimately political will. I congratulate the
subcommittee for beginning this hearing on a Monday, and in a collegial
fashion with a proper quorum present. Clearly committees can gather
information in the pursuit of oversight by staff and electronic means,
but proper oversight by Congress remains a collegial function to be
conducted by Members. The scheduling of votes only on certain days in
the House, and Members' desire to be in their districts work as a
counterforce to the conduct of oversight. Oversight, and the proper
restructuring and implementation of the authorization process, require
time and attention, especially in the face of competing priorities
toward consolidation and modernization of standing committee
jurisdiction on the one hand with retention of legitimate jurisdictions
over non-homeland security related missions of some of those same
entities within the new Department on the other.
I commend to the attention of the subcommittee the book entitled
``Congress Against Itself'' written by Mr. Roger H Davidson and Mr.
Walter J. Oleszek in 1976 as an analysis of the efforts taken by the
House in 1974 on committee jurisdictional reform and earlier
jurisdictional reforms. The committee is to be commended for obtaining
the services of Mr. Oleszek. His preface to that book could serve as an
inspiration and guide to your committee.
ATTACHMENT A: MAJOR COMMITTEE JURISDICTIONAL OVERLAPS
Agriculture (Agri)
with NB on forests, multiple use areas
with BF and EC on commodities exchanges and futures
regulation
with EC on food purity; poultry inspections with EL on
food nutrition and feeding programs
with PA on CCC food distribution abroad with EC and PIMP
on fish inspection, fish farming
with PW on stream and soil erosion
Appropriations
Armed Services (AS)
with BC on naval petroleum reserves
with EC, NR or ST on nuclear issues (where military
applications at issue)
with EC on Superfund clean of military bases
with FA on arms control inspections, NATO (and status of
forces), export licenses
with VA on educational programs
with BF and EL on defense economic conversion
with BF on defense production
Banking, Finance and Urban Affairs (BF)
with EC on bank powers in new fields like securities and
insurance; insurance industry regulation generally
with WM on government securities initial issuance
with PW on regional commissions; disaster insurance
with ST on earthquake insurance
with AS on defense production
Budget
District of Columbia (DC)
with PW on regional transportation (Metro)
Education and Labor (EL)
with Ways & Means on ERISA
with Agri on certain feeding programs; land grant colleges
with WM on workfare (work incentive) requirements
with EC and PW on labor disputes also involving railway or
airline labor laws (where EC and PW now exclusive)
with Jud on prison labor
Energy and Commerce (EC)
with AS, NR, ST on energy policy, authorizations for Dept
of Energy
with NB on regulation of commercial nuclear industry,
nuclear waste disposal.
with PW on Superfund, transportation issues involving rail
roads, magnetic levitation, automobile and other commercial vehicle
safety standards
with WM on health (part B medicare especially)
with Agri and MMF on fish and food inspection
with Agri on FIFRA; Food, Drug and Cosmetic Act with ST on
research and development ``commercialization''; standardization
with PA and BF on foreign investment in US
Foreign Affairs (PA)
with SST and MMF on global environmental issues
with MMF on fishing and whaling agreements with Agri on
food distribution overseas
with AS on arms control, export licenses, weapons
inspection, NATO
with NR on status of Micronesia and trust territories
Government operations (GO)
with any committee on new commissions, subdepartmental
reorganizations
with Rules on budget process changes
with PW on public buildings regulation
with EC on indoor clean air
with JU on ``takings'' and administrative procedure
with AS on defense contracting procedures and standards
House Administration (HA)
with EL or PO on labor issues involving House employees
with EC or Po on broad campaign reform
with Rules on Rule 51
Judiciary (Jud)
with EC on copyright issues in cable, digital audio, drug
patents
with EC on telecommunications regulation: antitrust;
insurance regulation antitrust; insurance regulation (McCarran
Ferguson)
with PW on certain interstate compacts
Merchant Marine (MM)
with NR on outer continental shelf, endangered species,
Alaska; oil exploration
with PW on clean water, ocean dumping, oil spill,
wetlands, coastal zone management; intermodal transportation
with EC, AG, PW, ST on EPA
with NR and FA deep seabed mining
Natural Resources (NR)
with EL or EC on Indian issues
with Agri on forests
with MMF on OCS, public domain wildlife refuges
Post Office and Civil Service (PC)
with JUD on judicial branch salaries
with HA On legislative branch salaries
with others on new departmental positions
Public Works and Transportation (PW)
with MM on clean water, ocean dumping, oil spill,
wetlands, intermodal transportation
with EC on maglev, commercial vehicle safety, Supeerfund
with NR on Kennedy Center
Rules
bills with expedited procedures
with GO on budget process
with HA on Rule 51
Science, Space and Technology (ST)
with EL on science education and scholarships, technical
training, etc
with EC on commercialization of research and development
with EC and NR on Dept of Energy
with PA and MMF on Antarctica
with Jud on antitrust protection for r&d businesses
Small Business (SB)
with AS and GO on contracting setasides (and other
committees on agency apecific basis)
Veterans Affairs (VA)
with AS on educational benefits
Ways and Means (WM)
with EC on health and domestic content
with EL on ERISA, welfare
with BF on public debt management, issuance of notes
with BF, MMF, NR, PW and others on fees and assessments
(revenue)
Addendum to ``Major committee jurisdictional overlaps''
Committee re-designations:
Banking, Finance, and Urban Affairs was re-designated as Financial
Services.
Education and Labor was re-designated as Education and the
Workforce.
Foreign Affairs was re-designated as International Relations.
Government Operations was re-designated as Government Reform.
Natural Resources was re-designated as Resources.
Public Works and Transportation was re-designated as Transportation
and Infrastructure.
Science, Space and Technology was re-designated as Science.
Committee re-alignments:
District of Columbia abolished. Its jurisdiction was transferred to
Government Reform.
Merchant Marine was abolished. Its jurisdiction was transferred to,
among others, Armed Services, Resources, and Transportation and
Infrastructure.
Post Office and Civil Service was abolished. Its jurisdiction was
transferred to Government Reform.
Major jurisdictional transfers:
Jurisdiction over ``securities and exchanges'' was transferred from
Energy and Commerce to Financial Services.
Jurisdiction over various budget proceedings was transferred from
Government Operations to Budget.
Jurisdiction over ``insurance generally'' was vested in Financial
Services.
ATTACHMENT B: SUMMARY OF MAJOR CHANGES IN RULES X AND XI OF THE
RULES OF THE HOUSE OF REPRESENTATIVES
Dated: October 10, 1974
A copy is maintained in the Committee Files.
ATTACHMENT C: RULE XII RECEIPT AND REFERRAL OF MEASURES AND MATTERS
A copy is maintained in the Committee Files.
ATTACHMENT D:
CONTENTS
Testimony of:
The Honorable CW. Bill Young, Chairman, Committee on
Appropriations
The Honorable David B. Obey, Ranking Minority Member, Committee
on Appropriations
The Honorable Ike Skelton, Ranking Minority Member, Committee
on Armed Services
The Honorable W.J. (Billy) Tauzin, Chairman, Committee on
Energy and Commerce
The Honorable John D. Dingell, Ranking Minority Member,
Committee on Energy and Commerce
The Honorable Dan Burton Chairman, Committee on Government
Reform
The Honorable Henry A. Waxman, Ranking Minority Member,
Committee on Government Reform
The Honorable Porter J. Cogs, Chairman, Permanent Select
Committee on Intelligence
The Honorable Nancy Pelosi, Ranking Minority Member, Permanent
Select Committee on Intelligence
The Honorable Henry Hyde Chairmen, Committee on International
Relations
The Honorable Tom Lantos Ranking Minority Member, Committee on
International Relations
The Honorable Sherwood L. Boehlert, Chairman, Committee on
Science
The Honorable Ralph M. Hall, Ranking Minority Member, Committee
on Science
The Honorable Don Young, Chairman, Committee on Transportation
and Infrastructure
The Honorable James I. Oberstar, Ranking Minority Member,
Committee on Transportation and Infrastructure
The Honorable William M. Thomas, Chairman, Committee on Ways
and Means
The Honorable David M. Walker, Comptroller General, General
Accounting Office
Material Submitted for the Record:
Opening Statements of Select Committee Members
Statement of the Honorable Michael C. Oxley, Chairman,
Committee on Financial Services
Appendix Recommendations of the Standing Committees:
Committee on Agriculture
Committee on Appropriations
Committee on Armed Services
Committee on Energy and Commerce
Committee on Financial Services
Committee on Government Reform
Permanent Select Committee on Intelligence
Committee on International Relations
Committee on the Judiciary
Committee on Science
Committee on Transportation and Infrastructure
Committee on Ways and Means
ATTACHMENT E: LEGISLATIVE HISTORY OF H.R. 5005
Department of Homeland Security (DHS)
H.R. 5005, a bill to establish the Department of Homeland Security,
was referred to the Select Committee on Homeland Security and in
addition to 12 committees (Agriculture, Appropriations, Armed Services,
Energy and Commerce, Financial Services, Government Reform,
Intelligence (Permanent Select), International Relations, the
Judiciary, Science, Transportation and Infrastructure, and Ways and
Means) in each case for consideration of such matters as fall within
their jurisdiction. Pursuant to House Resolution 449, the additional
committees provided recommendations on the bill to the Select
Committee. The Select Committee then reported the bill to the House (H.
Rept. 107-609). The recommendations of the additional committees are to
be compiled into an appendix to a Select Committee hearing transcript.
In the interim, the following materials may be helpful to tracking
individual committee action on the bill.
----------------------------------------------------------------------------------------------------------------
Document Type Number/Record Cite Committee
----------------------------------------------------------------------------------------------------------------
Committee Report on HR. 5005 107-609, pt. 1 Select Committee on Homeland Security
----------------------------------------------------------------------------------------------------------------
Activities Report December 16, 2002 Select Committee on Homeland Security
----------------------------------------------------------------------------------------------------------------
Activities Report 107-793 Committee on Transportation and
Infrastructure
----------------------------------------------------------------------------------------------------------------
Activities Report 107-807 Committee on the Judiciary
----------------------------------------------------------------------------------------------------------------
Activities Report 107-802 Committee on Energy and Commerce
----------------------------------------------------------------------------------------------------------------
Activities Report 107-801 Committee on Ways and Means
----------------------------------------------------------------------------------------------------------------
Activities Report 107-796 Committee on Agriculture
----------------------------------------------------------------------------------------------------------------
Activities Report 107-809 Committee on Science
----------------------------------------------------------------------------------------------------------------
Activities Report 107-805 Committee on Government Reform
----------------------------------------------------------------------------------------------------------------
Activities Report 107-803 Committee on International Relations
----------------------------------------------------------------------------------------------------------------
Activities Report 107-791 Committee on Armed Services
----------------------------------------------------------------------------------------------------------------
*The Committees on Appropriations and Financial Services, and the Permanent Select Committee on Intelligence
forwarded recommendations to the Select Committee without formal meetings.
ATTACHMENT F: BILLS REFERRED TO THE SELECT COMMITTEE ON HOMELAND
SECURITY AS OF MAY 15, 2003.
Bills amending the Homeland Security Act of 2002
H.R. 1416, introduced by Rep. Cox, was referred to the Select
Committee on Homeland Security. It made various technical corrections
to the Act.
H.R. 484, introduced by Rep. Ose, was referred primarily to the
Select Committee on Homeland Security, and additionally to the
Committees on Energy and Commerce, Science, and Government Reform. It
amended the Homeland Security Act of 2002 in several respects regarding
a homeland security research program, a vaccine injury program, and
procurement for the Department of Homeland Security.
H.R. 853, introduced by Rep. Slaughter, was referred primarily to
the Select Committee on Homeland Security, and additionally to the
Committee on the Judiciary, Transportation and Infrastructure, and Ways
and Means. It established a Northern Border Coordinator with the
Department of Homeland Security to increase border security.
H.R. 1355, introduced by Rep. DeLauro, was referred primarily to
the Committee on Government Reform, and additionally to the Select
Committee on Homeland Security. It addressed restrictions on the
Department of Homeland Security contracting with certain foreign
incorporated entities.
H.R. 1389, introduced by Rep. Crowley, was referred primarily to
the Committee on Transportation and Infrastructure, and additionally to
the Select Committee on Homeland Security and the Committees on Science
and the Judiciary. It required, among other matters, a program of
assistance by the Secretary of Homeland Security to state and local
first responders.
H.R. 1449, introduced by Rep. Millender-McDonald, was referred
primarily to the Committee on Transportation and Infrastructure, and
additionally to the Select Committee on Homeland Security. It expanded
the role of the Office for Domestic Preparedness to include making
grants to local first responders.
Bills not amending the Homeland Security Act of 2002
H.R. 277, introduced by Rep. Goode, was referred primarily to the
Committee on Armed Services, and additionally to the Select Committee
on Homeland Security. It amended Title 10, United States Code, to allow
the assignment of members of the armed forces to assist various bureaus
of the Department of Homeland Security in border security. It also
required the Secretary of Homeland Security, along with the Secretary
of Defense, to provide training for such members.
H.R, 1007, introduced by Rep. McNulty, was referred primarily to
the Committee on Transportation and Infrastructure, and additionally to
the Select Committee on Homeland Security and the Committees on the
Judiciary and Energy and Commerce. It directed the Secretary of
Homeland Security to make homeland security grants to localities for
firefighters, first responders, and law enforcement.
H.R. 1010, introduced by Rep. Nadler, was referred primarily to the
Committee on Transportation and Infrastructure, and additionally to the
Select Committee on Homeland Security and the Committee on Ways and
Means. It required the Department of Homeland Security and the Customs
Service to inspect cargo on vessels entering domestic ports.
H.R. 2122, introduced by Rep. Tauzin, was referred primarily to the
Committee on Energy and Commerce, and additionally to the Select
Committee on Homeland Security and the Committee on Government Reform.
It established a program of research, procurement, and deployment of
biomedical countermeasures managed primarily by the Departments of
Homeland Security and Health and Human Services.
ATTACHMENT G: DEPARTMENT OF HOMELAND SECURITY (DHS)
Pursuant to section 4 to Public Law 107-296, the Department of
Homeland Security (DHS) was established on January 24, 2003. P.L.
10F296 provided for the transfer of several disparate government
entities into the new department and allowed the President to submit a
reorganization plan and subsequent modifications thereof. This
jurisdictional breakdown is limited to the major entities transferred
under the law, the Reorganization Plan, and subsequent modifications
(House Documents 108-16 and 108-32). Interested parties should consult
those documents for specific details on entities being transferred.
Reporting directly to the Secretary
Secret Service - Committee on the Judiciary and Committee on
Transportation and Infrastructure
Coast Guard - Committee on Transportation and Infrastructure
Border and Transportation Security directorate
Customs - Committee on Ways and Means
Immigration and Naturalization Service (INS) - Committee on the
Judiciary
Federal Protective Service - Committee on Transportation and
Infrastructure
Transportation Security Administration (TSA) - Committee on
Transportationand Infrastructure
Federal Law Enforcement Training Center - Committee on the
JudiciaryAnimal and Plant Health Inspection Service (APHIS) -.
Committee on
Agriculture
Office for Domestic Preparedness - Committee on the Judiciary
Emergency Preparedness and Response directorate
Federal Emergency Management Agency (FEMA) - Committee on
Transportation and Infrastructure
Strategic National Stockpile and the National Disaster Medical
System - Committee on Energy and Commerce
Nuclear Incident Response Team - Committee on Energy and Commerce
Domestic Emergency Support Teams - Committee on the Judiciary
Science and Technology directorate
CBRN Countermeasures Programs - Committee on Science
Environmental Measurements Laboratory - Committee on Science
National BW Defense Analysis Center - Committee on Armed Services
Plum Island Animal Disease Center - Committee on Agriculture
Information Analysis and Infrastructure Protection directorate
Critical Infrastructure Assurance Office - Committee on Science
Federal Computer Incident Response Center - Committee on Science
National Communications System - Committee on Armed Services
National Infrastructure Protection Center - Committee on the
Judiciary
Energy Security and Assurance Program - Committee on Science
Department of Homeland Security (DI-IS)
Pursuant to section 4 of Public Law 107-296, the Department of
Homeland Security (DI-IS) was established on January 24, 2003. P.L.
107-296 provided for the transfer of several disparate government
entities into the new department and allowed the President to submit a
reorganization plan and subsequent modifications thereof. This
jurisdictional breakdown Is limited to the major entities transferred
under the law, the Reorganization Plan, and subsequent modifications
(House Documents 108-16 and 108-32). Interested parties should consult
those documents for specific details on entities being transferred.
Committee on Agriculture
Animal and Plant Health Inspection Service (APHIS) - responsible
for protecting and promoting U.S. agricultural health, administering
the Animal Welfare Act, and carrying out wildlife damage management
activities.
Committee on Armed Services
National Bio-Weapons Defense Analysis Center - information source
for chemical warfare (CW) and chemical and biological defense (CBD)
science and technology.
National Communications System (DOD) - national security and
emergency preparedness communication.
Committee on Energy and Commerce
Strategic National Stockpile and the National Disaster Medical
System
(HHS) - public health emergency readiness.
Nuclear Incident Response Team (DOE) - expert personnel that deal
withnuclear emergencies, nuclear accidents, and nuclear terrorism.
Committee on the Judiciary
Secret Service - protection of persons, see also Transportation and
Infrastructure.
Immigration and Naturalization Service (INS) - immigration and
naturalization issues Federal Law Enforcement Training Center
(Treasury) - law-enforcement training.
Office for Domestic Preparedness (DOJ) - responsible for state and
local jurisdictions response to incidents of domestic terrorism.
Domestic Emergency Response Teams (DOJ) - stand-by interagency team
that provides advice and support to FBI commanders at crisis scene
National Infrastructure Protection Center (FBI) - terror threat
evaluation and public warning.
Committee on Science
CBRN Countermeasures Programs (DOE) research on chemical,
biological, radiological, and nuclear countermeasures.
Environmental Measurements Laboratory (DOE) - advances and applies
the science and technology required for preventing, protecting against,
and responding to radiological and nuclear events in the service of
Homeland and National Security.
Critical Infrastructure Assurance Office (Commerce) - general
cybersecurity. Federal Computer Incident Response Center (GSA) -
federal government cybersecurity.
Energy Security and Assurance Program (DOE) - using science and
technology to secure energy infrastructure.
Committee on Transportation and Infrastructure
Secret Service - protection of certain foreign missions and other
buildings within D.C., see also Judiciary.Coast Guard - maritime
responsibilities ranging from maritime safety to national defense.
Federal Protective Service - protection of federal buildings.
Transportation Security Administration (ISA) - provides security
across all modes of transportation.
Federal Emergency Management Agency (FEMA) - disaster preparedness,
management, and relief.
Committee on Ways and Means
Customs Service - enforcer of trade laws and treaties and certain
law- enforcement responsibilities.
Mr. Diaz-Barlart. Very instructive. Enjoyed your testimony
very much. I want to welcome the distinguished chairman and
ranking member of the full committee for joining us, Mr. Cox
and Mr. Turner. We are honored with your presence. Thank you
very much for joining us as we learn and think out loud.
Mr. Johnson, you mentioned what has become pretty evident
in terms of the, let's say, the weakening of the authorizing
process. Do you have any ideas on how we could revitalize the
authorizing process?
Mr. Johnson. We are a bicameral system, and to a certain
extent I would have to observe that efforts made on the House
side to perpetuate and validate the authorizing process have
not been matched on the Senate side. It is easier for the
Senate to incorporate legislative provisions into must pass
appropriation bills, than to enter a full blown consideration
of Senate and then conference authorization matters. Beyond
that, the timetable contemplated in the rules, contemplate
authorizations enacted into law, not just passed by the House.
The Rules Committee often grants waivers of points of order,
very often on appropriation bills, where all or some of the
funding in those bills has not yet been authorized by law for
the fiscal year in question. I know this dovetails into the
issue of biennial budgeting. There are a lot of different
approaches to it, I don't advocate one necessarily over the
other, but I think there needs to be more attention paid to the
work product of authorizing committees, consistent with the
multiplicity of referrals that we often get on authorization
bills, but also consistent with the leadership's desire to
program bills throughout the year as they become available.
Now, prior to the Republicans being in the majority, I can
remember in the late 1980s, early 1990s, the Democratic whip
saying we need to have a full schedule in the early part of the
year. The pattern began to be set of bills coming out of the
authorizing committees and going quickly to the floor without
timely or lengthy sequential referrals but with so-called task
forces. Speaker Wright become enamored of the notion of ``task
force'' recommendations. I would mention there is a good paper
from CRS on what was then the proliferation of task forces in
the early 1990s. But it has given way I think more often these
days to an exchange of correspondence between the primary
committee and various potential sequential committees while
foregoing jurisdictional claims. Virtually every authorization
bill that is initially reported is accompanied by some
correspondence between the various committees temporarily
relinquishing a jurisdictional claim but still asserting it and
asking to be considered as conferees. The notion of the
authorization process being a legitimate separate decision-
making tier in the process of decision-making, when the budget
process was superimposed as a separate level of decision-making
in addition to the authorization process, it just really
compressed the available time that Members have over the course
of the year to give full attention to the authorization
process. Part of it is a House-Senate relationship, part it was
perhaps the leadership being more sensitive to allowing the
authorization process to play out if they could started in a
timely way, to consider whether the 3-day availability rule
should be routinely waived as opposed to allowing Members
legitimate time to review the authorizing committees' reports.
In other words, Mr. Chairman, I have no complete answer. It
is a matter of planning through the leadership and the various
committees, both in conducting oversight and legislative
responsibilities, to systematically and properly schedule over
the course of the 2-year period.
Mr. Diaz-Barlart. You spoke at some length about multiple
referrals. In your view, are there ways to strengthen the
Speaker's referral authority or does he have as much authority
as he needs?
Mr. Johnson. I think he has all the authority he needs. I
mean we have seen it reflected, as I say, in the many
sequential referrals where decisions are deferred until the
primary committee has a work product. We have seen three
examples of an ad hoc select subcommittee, first Energy and
then twice regarding the Continental Shelf, where the House
endorsed the notion of bringing the standing committees
immediately together within an ad hoc select committee to
consider a certain bill. The notion of joint referrals giving
way to primary plus additional allows all kinds of flexibility.
I think it is more a planning issue within the majority party
in consultation with the minority so that effective oversight
can precede effective authorizing. That planning has to go on
far in advance.
I think I would suggest to your committee, as you decide on
the extent of your own oversight with the mandate to report to
the Rules Committee a year from September, while you have got
some time but don't consider that you have so much time that
you can go backload it all.
Mr. Diaz-Barlart. If we look at the pattern of multiple
referrals in a specific area, for example, Homeland Security or
Energy or Health, does that tell us anything about whether
there is too much committee fragmentation?
Mr. Johnson. Well, that is precisely the kind of question
that I might be sensitive about answering. Clearly committee
fragmentation has remained in the rules, and this pamphlet,
which is exhibit B, shows that. In the area of Homeland
Security submissions F and G will show fragmentation. Whether
it is, quote, ``too much'' is a difficult question because a
lot of these jurisdictional concerns; for example, the Customs
Service, the Immigration and Naturalization Service, there are
homeland and nonhomeland aspects of those agencies remaining.
There are legitimate reasons for a standing committee to retain
jurisdiction in perhaps more of a nonhomeland environment than
to focus it all under one umbrella. But time is the key
question. Is there time for all these committees to coordinate
their legislative and oversight efforts in a meaningful way to
bring them to the attention of the House? The recent attempts
at reorganization, at master consolidation were inspired to
minimize overlapping jurisdictions and Speaker's multiple
referrals. That was the whole premise of the Bolling effort in
1974. But if you ask to put a political explanation on it, once
that package was reported from the select committee it was not
called up for 6 months. In the meantime other Members were very
active convincing their colleagues that more stood to lose
power and influence than to gain by a huge consolidation into--
for example, energy and environment into one committee,
combining six or seven committees' jurisdictions.
I think that is the ultimate political test that you face.
If you do come up with recommendations, how do you present
those recommendations to the Rules Committee and to other
Members? That is, I think, your biggest challenge.
Mr. Diaz-Barlart. Ms. Slaughter.
Ms. Slaughter. Thank you, Mr. Chairman. I look forward to
really poring over your statement. I had a cursory view of it.
It is very interesting.
Let me ask about multiple referrals. Have they complicated,
in your opinion, the conferee selection process?
Mr. Johnson. Yes.
Ms. Slaughter. In what ways?
Mr. Johnson. Because there is a track record, we used to
have major tax bills or civil rights bills where the Senate
would add something non germane and the only House people going
to conference were the Ways and Means members; for example, if
there was a civil rights amendment tacked on in the Senate. So
when there is an institutional record of jurisdictional
referrals, although the Speaker has some flexibility on
conference appointments, he is not a free agent because
committees can legitimately say we were additional, original,
joint, or sequential, we deserve representation at the
conference table both with respect to the House version and
with respect very often to nongermane Senate versions that have
been added in an attempt to bypass a House committee.
So Speakers since Speaker O'Neill have been forced to
recognize that in appointment of conferees. Speaker Foley made
a statement on the floor one day that he was determined to
simplify conference appointments. He was working in the face of
some very entrenched committee interests in those days.
Speakers Hastert and Gingrich have found it a little easier to
simplify conference appointments, but because of multiple
referrals, are still forced to take into account legitimate
jurisdictional claims, perhaps the numbers will be focused more
toward the primary committee, but clearly subconferences with
additional or even exclusive areas of conference jurisdiction
have proliferated since multiple referral.
Ms. Slaughter. Has that damaged, do you think, the
bargaining process in the House itself among committees?
Mr. Johnson. Conference reports then can emerge as the work
product of a more representative group. The question then is
does the House take cognizance of that and have time to review
some of those very complicated conference reports. You asked
``does the House suffer?'' Potentially no. If they are being
presented the input of a majority of the signatures from
Members with expertise and a variety of jurisdictions,
presumably the House benefits. I would just suggest that the
House would benefit even more if it has the ability to
understand the full complexity of what is being sent to
conference and what emerges as a conference report.
Ms. Slaughter. What effect does it have on the Senate's
bargaining ability?
Mr. Johnson. Well, the Senate normally does not go to the
extent the House does in dividing committee jurisdictions. They
stay pretty close to the primary committee.
Ms. Slaughter. Do you think that helps them to bargain
together as a unit?
Mr. Johnson. Probably. I have never really attended. I
guess I could discern that and have more information for you.
With each House getting one vote, the Senate conferees often go
with proxies. The committee anti-proxy rule does not
necessarily keep House conferees from using proxies if the two
conferees groups together decide to allow proxies. But I think
properly most House conferees go with members in attendance and
obviously their signatures are required for final approval of a
conference report. Signatures are always required. That is the
bottom line. But my guess is that it is easier for the Senate,
which very often uses proxies in conference, to facilitate, to
come to a position on a particular issue more readily than the
House, which has subgroups of conferees.
Ms. Slaughter. This is my 17th year. I have been appointed
to three conferences mostly before I came onto the Rules
Committee. In every case within 24 hours it was settled with
very little input or any consultation or, frankly, we didn't
know what was happening in most cases. And that was always
difficult because I think all of us want very much to be
conferees and to be able to leave some mark on legislation on
which we have worked. But that is a concern of mine that having
so many House conferees, whether some committees carry so much
more weight than others might, and that the decisions are made
so quickly and most of us, in my view anyway, most of us
conferees never participate at all except to show up and answer
roll call.
Mr. Johnson. The appropriations process is rather unique
still because the Speakers have consistently appointed only
appropriators to appropriations conferences. Even though the
House and Senate versions may be loaded with legislation and
other policy provisions, there is an unwritten rule and
expectation that the committees of important jurisdiction will
be at least advisers to the appropriation conferees, to
influence their eventual bargaining on what are purely policy
or legislative issues. So perhaps from the simplification
standpoint, the House has acknowledged institutionally those
bills are must-go bills, let's try to expedite conference
procedures, but still allow the legislative committee's input
through the appointed members. Whether that is a model to be
followed in overall simplification is certainly worth the
examination.
Ms. Slaughter. I think the theory is good, but I don't
think in practice, Mr. Johnson, it always worked that way.
Mr. Diaz-Barlart. Ms. Dunn.
Ms. Dunn. Thank you, Mr. Chairman. Thanks for holding this
hearing. It is interesting to get back into motion on
reorganization. I recall 10 years ago having served on a
committee and I remember Mr. Ornstein and Mr. Mann testifying
then and David Dreier's involvement. I think what stands out
the most in my mind is the complete frustration of Chairman
Hamilton as we tried to take our committee's recommendations to
the floor and we really had very little opportunity to debate
those provisions that we believed would create a bipartisan
Congress in much better shape. As it turned out, Republicans
took over control and on opening day and thereafter we were
able to implement one of those many reforms, proxy voting being
just one of those, but the open meetings act, which I was
particularly interested in, being a very important one to bring
openness to the Congress. That is why we can always have press
now in our meetings unless they deal with national security or
people's reputations.
So I have somewhat of a sense of the limitations of what
you can do when you reform the committees of Congress. I am one
who would like to see broader reform come at a time when we
have a speaker behind our effort and we have an opportunity for
the first time in ages to create a new department that is up to
date and in tune with today's needs, the Homeland Security
Department. I know we have options. We don't have to move
forward and create a new standing committee. My mind is far
beyond that. So it is interesting to even read that that would
be one of our options. I certainly hope we do move forward and
create a committee that broadens jurisdiction over issues
having to do with homeland security.
I have a couple of questions, and one of those I guess is
can we create a committee with meaningful jurisdiction
considering the difficulties we already have had in putting
this one together with jurisdictional concerns. What do you
think?
Mr. Johnson. A black letter rewrite of rule X to say, yes,
there shall be a standing committee on homeland security either
would have to literally transfer very much jurisdiction, and
those concerns were expressed at last Congress' Homeland
Security Committee, or create an additional layer as another
standing committee. But do the other committees retain current
jurisdictions? For the time being under the Speaker's mandate
they do. Whether eventually more Members stand to lose power
and influence by a consolidation than to gain, that is perhaps
or realistic approach to the eventual creation of a permanent
standing committee.
The rules of the House have never completely matched the
executive department reorganizations. We tried to do it, as my
statement said, in the Department of Transportation area and
the Department of Energy area, and incrementally some of those
changes have come to pass where, for instance, the Public Works
Committee is now the Committee on Transportation, but it took
20 years to get there from the creation of the department.
With respect to Energy, there is still not an Energy
Committee. The Energy and Commerce Committee is certainly
primary, they have a statement of jurisdiction over management,
but there are five or six other jurisdictional claims that
other committees retain. Whether it is possible politically and
institutionally to wrap homeland security-related functions of
the new department while retaining separate nonhomeland
security functions in standing committees, Customs,
Immigration, Food Inspection, Public Health, other
transportation aspects, Coast Guard, those are all examples
where there are clearly overlaps. If you had to draw a new rule
X you would have to be very conscious of whether you were
bifurcating those current statements of jurisdiction.
Ms. Dunn. Do you think that having a specific standing
committee on homeland security is the best way for us to
oversee that department, newly formed department in the
administration?
Mr. Johnson. Well, oversight, as I pointed out, is within
all committees' authorities. The rules of the House say, for
example, the Government Reform Committee can specifically
conduct oversight on any subject notwithstanding the fact that
one or more of the other standing committees has legislative
and oversight jurisdiction. So the the potential for repetition
in oversight is the question. All the standing committees can
conduct oversight in their respective areas of concern right
now, as can your Select Committee on Homeland Security. Does it
make sense to have those potentially competing authorities for
oversight or must it eventually become a leadership driven
coordination effort to try to simplify oversight, to parcel
out, if you will, to get understandings? I suppose that is
partly the reason that so many standing committee chairmen and
some ranking members are on this committee, to know the extent
to which the select committee will conduct oversight in
addition to or in lieu of the standing committees.
Again, Ms. Dunn, you can tell I don't have an easy answer
to it.
Ms. Dunn. To add to your answer, I think focus is a major
reason that we have this particular committee and are thinking
about extending it to a standing committee. What would you
suggest we do in areas over which we do not have oversight like
FBI and CIA. We have Porter Goss on our committee and others
who sit on committees, Judiciary chairman is on our committee.
How would you suggest that we handle that sort of
responsibility that certainly has a huge bearing on homeland
security but isn't within the 22 agencies over which our
committee has jurisdiction?
Mr. Johnson. Well, it is an interesting question. You say
you don't think you have the jurisdiction. Legislatively
perhaps not because that did not become part of the structure
of the new department. There was a decision made to keep FBI
and CIA within an entity--there was an office, a center, I
think, proposed in the House version that was ultimately
dropped in the final version. I am not sure that necessarily
translates into the conclusion that this committee has no
jurisdiction, no oversight jurisdiction over intelligence. You
have an Intelligence and Counterterrorism Subcommittee created.
Now, I think you can point to the rules of the House and say
you can conduct oversight in this area, but there obviously are
security and other concerns with the Permanent Select Committee
on Intelligence, which clearly has that very strong mandate in
the House rules. The extent to which you as a subcommittee
consider that potential inconsistency is a legitimate concern.
But I wouldn't necessarily say that you have no oversight in
this area. I think the threshold is the extent which you want
to exercise it consistent with the strong mandate for the
Intelligence Committee.
Ms. Dunn. Thank you. Thank you, Mr. Chairman.
Mr. Diaz-Barlart. Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman. And thank you, Mr.
Johnson, for being here today.
Ms. Sanchez. I begin by thinking that the more I look into
things, the more I think that there might be a case made for
having a standing committee for homeland security. And I come
to that reason, and let me first sort of lay out what I am
thinking and then ask you some, I think, pertinent questions to
that.
My biggest problem with what is going on with homeland
security is that I think it can be a very black hole with
respect for resources spent in protecting this homeland, and
that when there is jurisdiction, authorizing jurisdiction, I
guess, between different committees, that maybe there isn't
somebody really taking the whole picture of what is the--what
are the limited resources and what are really the priorities
that we have to do. And when you have something in
Transportation and something in Intelligence and something in
Commerce and other issues, then everybody is trying to solve a
problem, but nobody is really taking a look at the overall
picture. And I have a feeling that, from an authorizing
standpoint as well as from a spending standpoint, that this
committee can become a pretty large money committee in a sense.
On the other hand, when I took a look at some of the real
policy issues that this committee might be addressing, they
seem to be, quite frankly, taken pretty well care of within
some of the standing committees. In other words, there is--
Government Reform and Judiciary have done a pretty good job in
looking at and addressing more policy rather than the money
issues that come along with this problem.
I want to ask you a couple questions with respect to the
Commerce Committee and the reorganization that happened 20
years ago, or whenever it happened, because that is the last
real indication we have here. First of all, where would I go to
find some of the discussion that happened with respect to what
people were thinking when they were looking at the
jurisdictional issues of Commerce and Energy Committee? And,
secondly, Commerce, when I look at it, is a committee that
really does more policy rather than money. So maybe it doesn't
really apply as well to what I am asking of you. What would you
say were some of the biggest issues that were worked through
when that reorganization was going on and things that we should
be taking a look at from an overall standpoint?
Mr. Johnson. Well, that was in 1980 when a similar select
committee on committees chaired by then Representative
Patterson from California, Jerry Patterson, was established in
the wake of the creation of the Department of Energy, which was
in turn a response to the energy crisis of the late 1970s. The
House in its wisdom adopted a substitute offered by one of the
most respected Members of the House, Jonathan Bingham of New
York. He saw the jurisdiction which had been in five or six
committees going to a new Energy Committee which would be
separate from the remaining jurisdiction of what was then
called the Interstate and Foreign Commerce Committee.
They are committee reports and summaries, and certainly the
debates in 1980 are instructive because the day--similar to the
day the Bolling recommendations were rejected, the day the
Jonathan Bingham substitute overcame the recommendations of the
select committee was another watershed day in the House. It was
yet another indication that a select committee's
recommendations, unless there is a lot of work done to
encourage Members to appreciate and vote for them, may not
prevail on the House floor when, as it turned out, six
committees, including then Interior, Science, Armed Services-
nuclear energy was a huge issue then, still is. Armed Services,
Resources, Science committees together perhaps felt that they
were going to stand to lose more power and influence than would
remain with them, so it was a tough sell.
A memorandum of understanding finally emerged when the
continued fragmentation among the committees was adopted, the
five or six committee chairmen got together. It is very
instructive for you to read that memorandum of understanding.
They basically agreed by signing a piece of paper that no one
lost anything jurisdictionally. They agreed that the Speaker
could make multiple referrals as he had begun to make over
those preceding 4 years to honor every committee's retained
jurisdiction, and that is where it stood. I think that is a
valuable lesson, as you ponder this potential reorganization,
that there has been such a proliferation of referrals that it
does enhance the status quo arguments for retention of existing
jurisdictions.
But when you-focus on money as distinguished from policy.
The authorization process is really both. In its traditional
form, it is supposed to recommend levels of spending above
which the appropriators should not go in conjunction with new
policy, whether it is permanent or whether it is sunsetted
after a few years. So a true authorization in the traditional
sense is both. The question is, given the compression of
scheduling in the current-day reality on establishing the
Congressional budget, meeting the October 1st fiscal year
deadlines, with a budget resolution or without one, does the
reauthorization process, which is potentially there to set
limits on spending, is it relevant anymore, or could it be made
more relevant once again?
So, policy and spending issues really intersect in a true
authorization environment.
Mr. Diaz-Barlart. Ms. Sanchez, please feel free to
continue; but since we have been interrupted by this nasty
business called democracy, why don't we go and vote. And then,
if the witnesses would be so kind, Mr. Johnson and the two
subsequent witnesses, to return, then we can continue. So we
will resume. Thank you very much.
Ms. Sanchez. Mr. Johnson, I didn't mean that--I realize
that a good authorizing bill, you know, does involve the money
perspective. That is what I mean that I think this committee
could become a money committee, probably just right behind
defense, in my opinion. There are so many issues that people
are approaching us about in order to protect the homeland. I am
interested to ask you what you think about the whole issue of
having one place to really take a look at limited resources and
where one places them versus the situation that we have now,
which is spread over almost every committee in the Congress.
Mr. Diaz-Barlart. Why don't we do this: The committee will
be in recess. If you can hold your answer, then you can
continue; please feel free to continue your line of questions,
and we will be back. If you could hold your answer until we
come back, Mr. Johnson. Thank you very much.
[Recess.]
Mr. Diaz-Barlart. The subcommittee hearing will reconvene.
I recall that Ms. Sanchez was asking some questions. As a
matter of fact, the last she had asked some questions, and
before, Mr. Johnson, you had an opportunity to reply, we had
the interruptions. Perhaps you could reply, and then if there
are any questions from Members present, we will have them--.
And, again, we thank you so much for waiting.
Mr. Johnson.
Mr. Johnson. Mr. Chairman, I did have a follow-up
conversation with Ms. Sanchez before she left, and she was
using her membership on the Armed Services Committee as an
example, as probably the most vivid example, of the House
authorization process being honored on an annual basis, because
the defense authorization bill, while it has undergone unique
procedural nuances in recent years, as you know, Mr.Chairman,
as a member of the Rules Committee, they have gone to issue
clusters, so-called, as they allowed amendments. But invariably
the Armed Services Committee has been able to report and have
considered on the House floor their authorization bill before
the defense appropriation bill is considered. Now, that doesn't
mean the appropriation bill doesn't need a waiver of points of
order; it does, because the authorization doesn't become law in
time. To the extent that they have been able to sanctify the
authorization process with debate on policy and funding levels
on an annual basis, a framework for appropriations has been
developed.
So I think in her mind she was asking can this same
guarantee, if you will--I don't want to put words in her
mouth--translate over into this area of homeland security. It
is perhaps more difficult because you have entrenched
established areas of jurisdiction within the various standing
committees as opposed to clearly delineated jurisdictional
areas that have existed for some time within the Committee on
Armed Services. So I think that was the model she using.
There is not a clear answer as to whether there is time and
the willpower to sanctify, if you will, an authorization
process within the homeland security area. I don't think the
Armed Services Committee is an exact model, but, again, it is
instructive to the dilemma that your committee faces as you
submit recommendations to the Rules Committee.
Mr. Diaz-Barlart. Thank you, Mr. Johnson.
Do you have any follow-up questions?
Ms. Slaughter. No, I don't.
Mr. Diaz-Barlart. I have found your testimony extremely
helpful, and again feel it has been an honor that you have
gotten us off to a wonderful start. So thank you for
testifying.
Mr. Johnson. Mr. Chairman, if I might just say that our
office remains available to any of your Members and staff in an
ongoing way to furnish information or to be helpful.
Mr. Diaz-Barlart. Thank you so very much.
Following Mr. Johnson, we will hear from two very well-
known legislative and political experts: Thomas Mann of the
Brookings Institution, and Norman Ornstein of the American
Enterprise Institute. Each is highly regarded for sharp
analysis and their prolific writing on Congress and other
important matters. Each, too, has testified many times on
reform issues before diverse House and Senate panels, and we
are honored to have Mr. Ornstein and Mr. Mann here.
Your entire testimony will be included in the record
without objection, and so, as you wish to proceed in the order
that you wish, you are very welcome.
STATEMENT OF THOMAS E. MANN, SENIOR FELLOW, GOVERNANCE STUDIES,
THE BROOKINGS INSTITUTION
Mr. Mann. Mr. Chairman, thank you very much. Ms. Slaughter,
I am delighted to be here, delighted to join once again with my
friend and colleague Norman Ornstein in collaborating on our
testimony and reflecting back on the experience of a decade ago
with our Renewing Congress project and the efforts surrounding
the Joint Committee on the Organization of Congress. We also
had occasion to work with the Rules Committee on a number of
changes, and am very pleased to be asked to participate in your
deliberation on this question.
Let me say that there is a natural temptation for a
political scientist, student of Congress, who has watched major
jurisdictional reform efforts in the past, to simply avoid the
whole question. Congressional history is littered with the
failure of jurisdictional reform. Mr. Johnson referred to much
of that history, the Bolling Committee, the Patterson
Committee, the Joint Committee on the Organization of Congress.
We can look at the formation of new executive departments,
whether it be Energy, Education, Transportation, and see that
in the past that hasn't been sufficient to prompt a rethinking
of rule 10 here in the House of Representatives. You probably
have to go all the way back to the formation of the Department
of Defense to find a really positive story, but that was
relatively easy, because there were separate service committees
that could easily be combined into the Armed Services Committee
up here in the Congress. So, lots of failure in the past.
Secondly, mechanisms have been developed over time to cope
with jurisdictional sprawl. And again, Mr. Johnson was very
informative in discussing the referrals. He could have talked
about special rules, of scheduling, of moral situation that has
been used to try to deal with the multiple jurisdictions across
committees that exist.
It is also the case that there are some real advantages in
allowing this jurisdictional sprawl, or at least advantages in
not eliminating it radically. There are little oases of
historical memory, of expertise among Members and staff on
various committees and subcommittees. There are alternative
perspectives brought to bear on similar problems that provides
the House and the Congress with some real advantage.
So you could make a pretty powerful case that, let well
enough alone; if you try to build a permanent standing
committee on homeland security, you will fail; and if you
succeed, you may end up doing some damage.
Now, that would have been the easy thing to say before your
committee today, but we are going to acknowledge the truth of
everything that I have just said, but take it one step forward:
That we believe your goal should be the establishment of a
permanent standing committee on homeland security. That these
are not ordinary times. September 11th doesn't happen every
month or year or decade or century.
Right now, Norman and I are involved in another project
called the Continuity of Congress project in which commissioned
members have concluded that replenishing the House in the face
of a catastrophic terrorist attack is virtually impossible
under our constitutional arrangements, and they will recommend
to you very shortly a constitutional amendment. And yet
virtually every member of the commission, ourselves included,
always argue against constitutional amendments. But
extraordinary circumstances call for extraordinary measures,
and I think this is one of those measures that--those times
when your committee should set as a goal the establishment of a
permanent standing committee on homeland security with
jurisdiction spelled out in rule 10.
Now, that doesn't mean it is absolutely comprehensive and
it is all exclusive jurisdiction. There are many areas in which
some shared jurisdiction are only natural. There are areas
within the Department of Homeland Security that have nothing to
do with homeland security. There are important activities in
the intelligence, the FBI, defense communities that are not
within the Department of Homeland Security. So of course it is
not a neat one-to-one mapping, but the problem is so central,
the experience has been so traumatic, that if Congress can't
make one substantial change in its jurisdictions under these
conditions, I suspect it never will be able to do so. So for
you to accept this as an impossible task at the outset, I
think, is to not give proper deference to the experiences we
have gone through in the last couple of years.
But our recommendation is that you move gradually and
strategically; that if you try to establish a permanent
standing committee with substantial jurisdiction that takes
away from other committees at once, you will fail. But one
could imagine moving incrementally and strategically with
several areas of jurisdiction, and maybe even enticing some
members on those committees to move to the new standing
committee on homeland security. It might be possible with the
support of the Speaker to pull it off. It is also clear that
this effort would have to be combined with all the other
efforts of coordination to make it work, because there never
could be one-to-one mapping.
Let me make one final comment before turning it over to
Norm. Congress throughout its history goes through periods of
centralization and decentralization. Right now we are in the
midst of an extraordinary centralization of power and authority
and procedures. The committees have suffered vis-a-vis the
leadership, and deliberation within a division of labor has
suffered to some extent. And there are advantages to that.
There are also disadvantages for the House as an institution.
My own view is that centralization is well-suited to a
pattern of dispersed jurisdiction, where the Speaker and his
agents can organize the effort to bring to the House, while
establishing a stronger standing committee with some original
jurisdiction acknowledges the advantages of division of labor
and genuine specialization. I think there is something to be
said for if only a slight move back in the direction of some
division of labor, specialization, decentralization in a House
whose great strength is its ability to deliberate one colleague
with another. Thank you.
Mr. Diaz-Barlart. Thank you very much.
Mr. Ornstein.
STATEMENT OF NORMAN J. ORNSTEIN, RESIDENT SCHOLAR, AMERICAN
ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH
Mr. Ornstein. Thank you, Mr. Chairman. And thank you for
the honor of appearing in front of you. And thanks to Ms.
Slaughter for the yeoman efforts to make it back for this
hearing.
We have been around the block on these issues for a long
time, I must tell you. Both of us were involved with the
Bolling Committee. You have other people in this room who were
as well. We don't look that old, I know. And we carried through
with the successor committees in the House up to and including
the Patterson Committee and beyond that. We both worked very
closely with Mr. Dreier and his counterpart Lee Hamilton in the
creation of the select committee 10 years ago and its efforts.
And I also was very proud to be a significant part of the most
successful effort at reorganization in Congress in a very long
time, which was the reorganization of the Senate in 1976, 1977,
where we actually had some greater success, although not what
we had hoped for.
Let me raise three larger questions that it seems to me we
should deal with. The first is, should this now be an occasion
for a full-scale reconception of the committee system as a
whole, something that we have done before, and unsuccessfully?
And one can certainly make the case both for Congress and for
the executive branch that the late great Daniel Patrick
Moynihan called for the creation of a new Hoover Commission to
look at the executive branch. The idea that we have moved from
the industrial age to the information age, and we have
institutions of government that are really set back in the
post-World War II industrial age should make us think through
whether we are organized appropriately to deal with the issues
and problems that lie ahead. And that is true of Congress as a
whole.
Desirable as that goal may be, it is a fool's errand right
now. It is not going to happen. We don't have any great sense
of urgency that this system is entirely broken, and the
resistance to it is so overwhelming that, unless you have a
much, much larger feeling out there that it has got to be done,
it is an important exercise, an interesting exercise, one that
may help us down the road, just as we know that a lot of things
that we have written, that others here have written you could
pull out now, 30 years later, and change a few words here and
there and they would apply, the same problems, maybe even the
same analysis may be useful at a later stage, but we are not
going to do that right now.
So we get to the second question, which is, when you have
the emergence of a new and powerful large-scale national
problem that cuts across existing lines, should that emergence
lead to the creation of a new, powerful, and comprehensive
standing committee to take it into account? And of course there
is a corollary there. If the executive branch responds to this
new, powerful, large-scale national problem by creating an
executive department, should Congress act in a parallel fashion
so that you have a comparable committee as much of the
committee system is organized along those lines?
Here, of course, is where the example of the energy problem
becomes an instructive one, and we have written about it a
little bit, and I will come back to it in just a second.
Then there is the third issue or the third question: Can we
find other mechanisms, including some creative ones, that can
work at least in part as a solution to this problem if it turns
out that, for a variety of reasons, we either don't believe it
is a good idea to create a sweeping new committee or we simply
can't? And that is where some of the things that we have
briefly touched on in our testimony, I think, become relevant,
and also some of the previous examples do.
Now, I want to talk about the energy issue just briefly for
a minute. But let me say, my own feeling is that we have a
problem now that does call out for a standing committee which
has very considerable jurisdiction over this problem area, and
as we suggest in the testimony, at least a little bit, I think
the parallels with the executive branch in this case are
important, powerful, and instructive.
The President started out with the equivalent of a select
committee, really, by putting the Office of Homeland Security
in the White House without significant line authority,
substantive authority; really the power of proximity to the
President, the power of having a very prestigious and
influential and important person appointed to that post in Tom
Ridge, and relied on his ability to coordinate matters to make
it work. It didn't work very well, and over time he came, I
think, inexorably to the conclusion that what he had originally
rejected, a department that is the equivalent of a powerful
standing committee, was a better way to go.
Now, I am not sure that I would have created a department
as sweeping as this one. I early on had thought that the
initial recommendation of the Hart-Rudman Commission that would
focus particularly on the border security areas was a good way
to start this process and basically pull together those
agencies that have a piece of the border and then move from
there. But I could understand what drove him to that larger
department.
And I think Congress will come and should come inexorably
to the conclusion that even though you have a tremendously
prestigious, intelligent leadership for this committee, and
even though you have the imprimatur of the Speaker, and even
though you have a lot of powerful Members, that if you don't
end up with some substantive jurisdiction, over the long run we
are going to have continuing problems overseeing and
legislating on and authorizing this huge new department that
represents the largest reorganization, I would argue, anywhere
in history. And we are already seeing the difficulties of
pulling that together, and having good, tough congressional
oversight becomes important.
So I am for that, while I recognize that it is simply not
practical or possible to do the kind of sweeping reorganization
in the Congress that was done in the executive branch, which
would do great violence to the jurisdictions of a significant
number of committees. And it is not going to happen. And there,
again, the example of Energy does become instructive, because
it wasn't just the efforts of the Patterson Committee and then
the Bingham substitute here. You could go back to the 1975,
1976, when we had this strong emerging sense of a crisis in
energy. We had an effort by Speaker O'Neill to try to create an
energy committee and met fierce resistance by all the other
committees. He was unable to do it. We had another effort after
the Energy Department was created by President Carter, and it
failed, of course, all this following on the Bolling
Committee's efforts before we ended up with the fairly minor
tinkering along the way.
But I don't think we are in much of a different situation
now, and clearly we are not in a position in the short term to
go ahead and move forward with a full-scale reorganization.
One element of the energy issue, though, that becomes
instructive here, I think, is worth mentioning, and that is
that after it became clear we weren't going to get a full-scale
committee, we did have President Carter move forward with his
chief priority early in his administration. It was a
comprehensive energy plan. And what Speaker O'Neill did at the
time was a very creative approach to move that piece of
legislation along. He created an ad hoc energy committee with
fairly widespread representation, kept the substantive
jurisdiction in the existing standing committees, but set very
firm deadlines for them to report out their pieces of this
legislation, and held them to those deadlines, moved it along.
And then the ad hoc committee coordinated the pieces. As they
took it to the floor, you actually had a sort of sharing of
responsibility on the floor between the standing committees and
the ad hoc committee. The ad hoc committee which pulled those
pieces together had some significant impact on the legislation.
They actually were able to build in elements that the standing
committees would not or could not, and helped to expedite it
through the process, and then also played some role a long time
down the road in the conference committee.
Because the bill as it passed through the House rather
quickly was then brought to a standstill by a filibuster in the
Senate for months, I think this ad hoc committee got no credit
for what it did, and at least the creative elements of this
process that engaged the Speaker got lost in the shuffle. And
it was not a process that was applied on any kind of a regular
basis later on. And I am not suggesting that you have a single
piece of legislation moving forward or that it should become
the process along the way, but what it did for me and what I
think it should lead you to do is to think through ways as we
move, perhaps gradually, and we hope towards, in fact, the
creation of a standing committee with some substantive
jurisdiction. Some additional elements, including the more
creative use of the referral process, and including perhaps a
more active involvement of the Speaker in that process and in
designating lead actors when important pieces of legislation
move forward, and maybe doing the same thing through an
oversight process, could help us along.
Now, let me say finally that we have also come to the
conclusion--there are actually two other quick pieces--that we
should look at shared referrals in this case, and that it may
be more appropriate to look at shared jurisdiction and shared
referrals--shared jurisdiction is what I meant--than in many
other cases. If you really think about the rationale for the
creation of a Department of Homeland Security and go back to
what the Hart-Rudman people used as their rationale when they
first recommended it, it really was the idea that we had a
group of agencies and bureaus and departments that had missions
and had had them for decades, were focused around those
missions, as with any organization built cultures to reinforce
those missions, and now they had a new and important mission,
and unless you moved them away from their cultures, they were
not likely to fulfill those missions. And they came to the
conclusion that the only way to do that was to forcibly move
them physically and otherwise out of their cultures. But that
ignored in some ways the reality that those old missions would
continue in place.
We have the same thing now with every single element of the
new Department of Homeland Security. They have a homeland
security mission. They also have additional missions. And we
have the same problem on a different scale with the
intelligence process in other areas where they have a homeland
security mission, but they are not a part of the new
Department. We have, obviously, a challenge coordinating those
things.
It would seem to me that having some shared jurisdictions
in these areas would be very useful. It would enable you to
make sure that the homeland security element of the mission of
those different bureaus is maintained while the committees that
have responsibility for the other elements, including the
Agriculture Committee for animal and plant inspection, would
retain some ability to make sure that those functions are
carried out and not lost in the shuffle either. So we can think
through some creative things there.
And, finally, I want to come back to something that we had
recommended a long time ago that I also think really needs
serious consideration. There really is a problem with executive
agencies and their top officials having to deal with demands
from 20 or 30 or 40 committees and subcommittees to come up and
testify, often saying the same things or on the same subjects.
Everybody wants a piece of the action, and if you say no, you
create a huge problem. This is an area where it just seems to
me the Speaker needs to be given the authority and the
encouragement to step in and create a process of prioritizing
for those top officials. In this area especially, where there
is such a political attraction to homeland security, the
temptation for dozens of committees up here to want to get the
top officials of the Department to come and testify will be
very, very large, and that will leave them no time to focus on
what they should be focusing on, which is homeland security.
We have got to set priorities and have it come from the
Congress where you say, no, you can't; or, you will have to
come to us and give us a compelling reason for why testimony in
front of your subcommittee by Tom Ridge or Asa Hutchinson or
any of these other top officials is an appropriate thing to do
when they have testified six other times elsewhere. That is
true for every department, it seems to me, and for every one of
these top officials, and ought to be another area that the
Rules Committee, that this subcommittee, considers as well.
Thank you.
Mr. Diaz-Barlart. Thank you. Thank you both very much. I am
very impressed with the crispness and the clarity as well as
the candor of your testimony, and I think it is extremely
helpful as this subcommittee begins to build a record for
ultimately coming to decisions.
PREPARED STATEMENT OF THOMAS E. MANN and NORMAN J. ORNSTEIN
The views expressed in this statement are those of the authors and
should not be ascribed to the trustees, officers, or staff members of
the American Enterprise Institute or The Brookings Institution.
Thank you for inviting us to testify before your subcommittee on
whether the existing committee structure in the House is adequately
organized to address the policy and oversight issues associated with
homeland security. A decade ago the two of us and our respective
institutions collaborated on a Renewing Congress Project, which was
designed to offer recommendations for improving the effectiveness of
Congress and restoring its legitimacy within the American political
system. As part of that effort, we testified before the Joint Committee
on the Organization of Congress on problems with the committee system
and made a number of suggestions regarding the number, size,
assignments to, jurisdictions, processes, and coordination of
committees. Some significant changes took place in the House committee
system in the years thereafter, thanks largely to the efforts of David
Dreier in 1994-95. But many of the same problems and issues remain. So
do the basic principles of congressional committee organization and
practice we articulated in 1993. We are pleased to collaborate once
again on a question central to our earlier deliberation: how might the
Congress best organize itself to deal with a new and pressing issue,
one that is exceedingly complex and multi-faceted.
September 11 and its aftermath generated tumultuous changes in
American government, including the most complex government
reorganization in American history. The new Department of Homeland
Security (DHS), a behemoth struggling to combine twenty-two agencies
employing nearly 200,000 workers, faces daunting managerial challenges
as well as immediate demands to deal with high-priority risks. While
its responsibilities extend well beyond homeland security, many
critical elements of the federal government's homeland security
activities continue to reside in other departments and agencies. The
new department will need all the help it can get `` adequate funding, a
clear sense of priorities, coordination of government-wide efforts by
the Office of Homeland Security, strong presidential support, and an
effective working relationship with Congress.
Just as importantly, the country needs strong, active and informed
congressional oversight of DHS and of the broader homeland security
mission of the federal government. Congress has taken some initial
steps in this direction, by creating new appropriations subcommittees
with responsibility for the homeland security budget, and by creating
the House Select Committee to begin the process of focusing and
coordinating congressional oversight of DHS and the broader strategy
for protecting the nation's security at home. The critical question
that must now be addressed by the House is whether the Select Committee
should be a steppingstone to a major permanent standing committee of
the House, with primary jurisdiction over both the department and the
areas of policy it encompasses, and with its areas of jurisdiction
spelled out in Rule X.
The reason for creating a permanent standing committee with primary
jurisdiction is clear. Currently, according to the Administration, 13
full committees in each house, along with more than 60 subcommittees (a
total of 88 panels overall) share some jurisdiction or responsibility
for homeland security. Of course, for many of these panels the piece of
jurisdiction or the centrality of the focus is very limited.
Nonetheless, many major pieces of responsibility for the new department
are central to at least four authorizing committees in the House
(Agriculture, Judiciary, Transportation and Infrastructure, and Ways
and Means.) These four committees have primary jurisdiction and
oversight authority for the Animal and Plant Inspection Service, the
INS, the Coast Guard, FEMA, the Transportation Security Administration,
and the Customs Service, which combined make up the lion's share of the
new department. To leave this fragmentation means that the central
motivation to create a new department -- to merge functions and change
cultures and outlook in these areas to focus on homeland security --
will be seriously compromised.
There is certainly a case to be made for addressing an even broader
question. The basic structure of the committee system, one designed in
the aftermath of World War II to fit its era, including focus on the
issues that dominated the times; to fit oversight of the executive
branch by having committees in many cases parallel the agencies; and to
be sensitive to representation of important groups like veterans and
small business, has not changed in nearly 60 years. Should the
committee system designed for the industrial age and the Cold War era
be replaced by one designed to fit the information age and the post-
Cold War era, with its problems of rogue states and terrorism?
We would be delighted if Congress used this opportunity to rethink
the basics. But we know that such an ambitious reform, or even such
focus, is not in the cards. Congress has too many other things to do,
and changes in the committee system, even of a small variety, are
excruciatingly difficult to achieve. We are painfully aware of what has
happened to other efforts at fundamental reform, including especially
the fate of recommendations of the Bolling Committee thirty years ago
and of the Joint Committee on the Organization of Congress a decade
ago.
We also know well that the emergence of a major national problem or
creation of a massive new cabinet department is usually not enough to
overcome turf considerations, power relationships, and the electoral
interests of Members to create major new authorizing committees. The
case of energy is particularly instructive. As many as 83 committees
and subcommittees had jurisdiction over energy policy and related
agencies in the 1970s. Among its sweeping changes, the Bolling
Committee had recommended creation of a new energy committee in 1974.
That proposal failed along with the other major recommendations. As the
energy problem deepened, Speaker O'Neill in late 1976 (before the
proposal for a Department of Energy) pledged to work for the creation
of a new standing committee on energy. The fierce reaction from
committee elders forced him to retreat from that pledge.
When President Carter made his energy plan the centerpiece of his
first year in office, in 1977, Speaker O'Neill created an ad hoc
committee to help shepherd the Carter plan through the House on an
expedited basis. He was unable to give this ad hoc committee primary
jurisdiction over the omnibus energy plan. Instead, the Speaker crafted
a plan allowing existing standing committees to work on their pieces of
the action, but under time deadlines. Their marked-up legislative
products were then given to the ad hoc committee to pull together into
a comprehensive plan. On the House floor, the leaders of the standing
committees managed their relevant portions of the bill, and these same
standing committee leaders were primary figures in the subsequent
conference committee. The ad hoc committee, under Thomas ``Lud'' Ashley
of Ohio and with a broad representation of senior members, had a real
impact, including, among other things, allowing passage of a gasoline
tax that had been opposed by the committee of original jurisdiction,
Ways and Means, and giving the overall product enough legitimacy that
it survived attacks by amendment on the House floor.
As a model to manage a major bill cutting across several
committees'' jurisdiction, the Ad Hoc Select Committee on Energy was a
strong one. It worked'' but then was disbanded. No comparable efforts
followed. The problem with fragmented jurisdictions in the energy area
remained. The House came back to this continuing problem a few years
later, after the second OPEC-driven oil embargo. In 1979, a successor
to the Bolling Committee, chaired by Jerry Patterson of California, had
as its major recommendation a consolidation of energy jurisdiction into
a new standing committee. The result was de ja vu all over again.
Fierce opposition from entrenched powerhouses on existing standing
committees doomed the proposal. A more modest alternative, crafted by
Rep. Jonathan Bingham of New York, was implemented, enhancing the
coordinating role of the Interstate and Commerce Committee (renaming it
Energy and Commerce) and giving it jurisdiction over ``national energy
policy generally.'' It also maintained jurisdiction and primary
oversight authority for the Department of Energy. At the same time, the
Bingham plan underscored the primary role of the Committee on Interior
and Insular Affairs over nuclear issues and of other committees in
separate areas of research and policy.
Both sweeping comprehensive reform of the Bolling variety, and
narrower, single-issue committee reform of the Patterson variety,
faltered. The energy experience is instructive, but it should not
suggest to you that changes in Rule X are hopeless. Given the reality--
a major new problem for the nation that will not diminish, much less
disappear, in the foreseeable future and a massive new executive
department requiring both a regular authorization and serious
oversight--you must grapple with the need for jurisdictional review and
change.
In some important respects, the problem facing Congress on homeland
security is the same as the problem that faced the president in the
immediate aftermath of 9/11. He initially eschewed the recommendation
of the Hart/Rudman Commission to create a full-fledged agency of
homeland security and opted for an office inside the White House-the
equivalent, in many ways, of choosing a select committee over a
standing committee. The office lacked line authority or budget power
over the various agencies, bureaus, offices and departments dealing
with facets of homeland security, relying instead on the importance of
the issue, the stature of its director, Tom Ridge, and on his physical
proximity to the Oval Office. Within months, the president realized
that those assets were not enough. Following proposals developed in
Congress, he recommended a large and far-reaching Cabinet-level
department to deal with homeland security issues.
The House opted to create a select committee, with no primary
legislative or oversight jurisdiction, relying for its authority on the
importance of the issue, the stature of its chair, Chris Cox, and
ranking member, Jim Turner, the assignment to the select committee of
chairs of committees with Rule X jurisdiction, and the imprimatur of
the Speaker and the Minority Leader. These assets, too, will not be
enough for the long term. Things a select committee can do-highlight a
problem, look at the bigger picture, coordinate the work and reconcile
differences among other committees, prod the executive branch to
implement reforms or focus on new areas, educate the public-will not
sustain it over the long run and do not solve the fundamental problem.
Some entity must provide the broader supervision for the massive DHS
and pull the jurisdictional pieces together in a substantive way for
Congress. Congress, of course, was explicit in this realization; the
Homeland Security Act says that it is ``the sense of Congress that each
House of Congress should review its committee structure in light of the
reorganization of responsibilities within the executive branch.'' In
our judgment, there is no way out of the logic that there should
eventually be a permanent standing committee on homeland security.
That said, we do not necessarily mean that the permanent standing
committee should be exactly parallel to the executive department-that
the House should create a colossus and in the process do violence to
the very fabric of its committee system. Instead, we recommend that the
House adopt a measured and multi-pronged strategy, including an
incremental approach to jurisdictional change, done in stages so the
new committee can absorb areas gradually and all the relevant
committees can adjust to change. This strategy will also involve some
overlapping jurisdiction (for example, sharing responsibility with
Agriculture for the Animal and Plant Inspection Service, or with
Transportation and Infrastructure for the Coast Guard). It also
suggests that leaders may want to rethink their initial decision to
populate a homeland security committee with chairs of other committees.
Shared and overlapping jurisdiction, in this case, is not just to
avoid opposition to change from existing committees. Historical memory,
expertise and competing perspectives on homeland security matters are
valuable commodities that should not be lightly dismissed. In addition,
the fact is that entities like the Customs Service, the Coast Guard and
the Animal and Plant Inspection Service have dual responsibilities. It
was the president's judgment, as it had been that of the Hart-Rudman
Commission beforehand, that the homeland security responsibility,
previously a secondary or non-existent one, must now be primary in all
these areas. To make it so means changing the bureaucratic cultures of
all these agencies and bureaus, which can only be done by moving them
into a new department with a new mission.
But the old missions do not disappear. The Customs Service still
must facilitate trade, keep traffic moving efficiently at borders, and
raise customs revenues. The Coast Guard must still facilitate
transportation and promote safety in our coastal waters. The Animal and
Plant Inspection Service must still protect sanitary conditions in meat
and food processing plants. The Transportation Security Administration
must still make sure that the aviation industry functions and that
travelers can get from place to place without undue inconvenience. If
homeland security is the only consideration, these functions can get
lost or perverted along the way. So keeping shared jurisdiction in
Congress can help make the dual functions work in the new department.
We also strongly recommend that the House, with the active
participation of the Speaker, the Parliamentarian and the Committee on
Rules, make full use of joint and sequential referrals, special rules,
scheduling and moral suasion to establish effective coordination among
committees and to ensure timely consideration of legislation. These
mechanisms will be especially important in coordinating authorizers and
appropriators of DHS activities with those overseeing the related
homeland security activities in the FBI, the intelligence agencies, the
Defense Department and other agencies. Finally, we recommend that the
Speaker establish his own coordination mechanism regulating the
required testimony of DHS officials before committees and
subcommittees. This will be necessary to prevent the debacle of
executives facing demands to testify in front of dozens of panels,
often on the same subjects, draining valuable time from their efforts
to protect the home front without any incremental addition to
Congress's knowledge base or ability to fulfill its own
responsibilities.
Mr. Diaz-Barlart. You have so much experience, let me ask
you, in your studies you have pointed to the extraordinary
difficulty of actually accomplishing these types of reforms.
Could you address, maybe give us some advice from your study of
the history of these efforts, perhaps some obvious lessons
learned in terms of overcoming or potentially overcoming the
inevitable turf wars or pressures for maintenance of the status
quo? Do you have some advice to give us, if the subcommittee
were to come to that conclusion, that we might want to share
then with our Members?
Mr. Ornstein. Kevlar.
Mr. Diaz-Barlart. Excuse me?
Mr. Ornstein. Kevlar. Bulletproof vests we start with.
Mr. Mann. Listen, one of the most--the clearest and most
obvious constraints here is that Members of the House, most
Members of the House build their careers through congressional
committees. They make a commitment. They are usually on several
committees. They develop expertise, they build seniority, they
establish relationships with interest groups that work with
those committees. Both the Members and the groups that have
developed patterns of communication, access, deliberation are
very reluctant to see those disrupted in any way, which a full-
scale jurisdictional realignment almost inevitably does. So
that is behind our suggestion that you initially develop joint
jurisdictions, that you move gradually and incrementally over
time with pieces of exclusive jurisdiction in ways that make
the committee attractive and could lead to some committee
transfers.
Now, one would have to do a calculation on the votes and
how that would work out, but I really believe you have to think
in these very practical terms. So you have got to come at it
from the bottom up, but at the same time you have to have a
larger strategy. And in this case it really is September 11th,
and what it has done to this country, the government, the
priority that the battle against terrorism will have for the
foreseeable future, it seems to me you have a claim, a public
claim, a moral claim.
There have been some statements from the leadership in
support of that priority and mission. There have also been
other statements from the leadership that all current standing
committees shall retain their primary jurisdiction on these
matters. So there is sort of conflicting messages from the
leadership. But I think my lesson in looking at this experience
is you have to do it intelligently and eyes wide open to the
clear political constraints, and try to work with those
constraints rather than to deny them; and, secondly, to have a
macrostrategy that plays off the fact that we have a whole new
set of problems on our hands that will require the attention of
the Congress as well as the executive branch in the years
ahead, and Congress has a responsibility to organize itself
appropriately to deal with that.
Mr. Ornstein. Let me make a couple of comments,
Mr.Chairman. I mean, first, to be very candid here--and since
most of the Chairs of the other committees are not here, I can
speak openly knowing they won't know it--that, you know, you
have an uphill battle that started with the creation of the
committee. It makes a lot of sense in many ways in a
substantive way to have a lot of other senior Chairs on the
committee and Ranking Members, but they are going to fiercely
resist having pieces of their jurisdiction taken away. And I
have seen this up close and personal in a lot of ways. Tom and
I will never forget when we were called on the carpet by the
Chair, by many of the Chairs, 10 years ago when we sat in a
room with Dan Rostenkowski, John Dingell, Jack Brooks, and
others wanting to know what we thought we were doing, having
recommended, among other things, that we move the trade
jurisdiction out of the Ways and Means Committee to create a
broader focus.
So--and these things don't change. It is actually the one
way you could bring bipartisanship back to the Congress; you
get all the members of the committees joining together.
So we know that this is difficult, and the way in which the
committee was created makes it more difficult to move
expeditiously in this direction.
The one lesson that I have learned looking at both the
House and Senate is that any kind of significant jurisdictional
change can't take place without the extremely strong backing of
the leadership on both sides; that unless you have the Speaker
and the Minority Leader willing to stand up and provide some
protection and take some of the hits for you, it just isn't
going to happen. We managed to get that in the Senate in 1977,
and without it, Adlai Stevenson, who was the Chair of our
committee, and Bill Brock, and then Bob Packwood, who was the
Ranking Member, would have failed miserably, and we got
something done. We got rolled as well.
I think the lack of really enthusiastic backing from the
leadership has doomed other efforts here in the House. And, you
know, surface backing but not real backing isn't enough. So you
have a constituency there that you have to reach, and it is
both Speaker Hastert and Ms. Pelosi, to convince them of the
necessity to make these things happen. I think even with that,
if you move to basically take very substantial pieces simply
out of the jurisdiction of committees like Commerce and
Judiciary and Agriculture, it wouldn't work, probably not now,
probably not for a long time. And that is why you have got to
be creative here to try to figure out how you can gain some
considerable jurisdiction, and you are still going to get
significant opposition, but that is probably the only way to
make this happen.
Mr. Diaz-Barlart. Let us talk a little bit for the record,
if you could give us a sense of how much jurisdictional overlap
exists in the homeland security area. Could you talk about
that?
Mr. Ornstein. Sure. I mean, the first is, of course, an
enormous amount. The administration, and it is probably a
slight exaggeration, has said that we have 88 panels,
committees and subcommittees, in both houses, that have a piece
of the homeland security jurisdiction. Now, I would guess we do
have 88 that would claim--maybe even more--that would claim
some piece of this jurisdiction, because it is natural to want
to have a piece of it, but a lot of that is very small pieces.
I mean, the fundamental reality is that we have got
obviously Appropriations, and then we have got four committees,
Agriculture, Judiciary, Transportation and Infrastructure, and
Ways and Means, that have a considerable piece of the
jurisdiction over the major components of the new Department,
and those major components of the new Department, which are
Plant and Animal Inspection Service, the INS, the Coast Guard,
FEMA, Transportation Security Administration, the Customs
Service, those together make up about 80 percent of the
Department of Homeland Security. And so that is really where
the lion's share of jurisdiction is, and that is where I think
the major challenges are in terms of--other than the
intelligence process, which obviously is a separate but
critically important part of this process--the major challenges
for you lie as well.
And I would hope, by the way, that if there is any success
at moving forward the creation of a permanent standing
committee, and one that does have jurisdiction, including a lot
of shared jurisdiction, that there would be a serious effort to
bring the intelligence component into it, even if it isn't in
the executive department. It makes for me even a more
compelling reason to make a joint or at least some shared
jurisdiction in the Congress, because we have to have some
formal mechanism for coordinating and thinking through ways in
which we can bring those elements together.
Mr. Mann. Mr. Chairman, I just mention as a resource for
your committee a book published by Brookings just in the last
couple of weeks called Protecting the American Homeland One
Year On, which really provides a lot of detail on the very
questions that you asked. They also argue that between the
problems of Homeland Security having non-homeland security
matters to deal with and the important homeland security
matters outside the Department, the challenge of the latter is
much greater than the former. And as you think about possible
reorganization within the House, I think you need to give
primary attention to how to coordinate the intelligence
activities that are now overseen elsewhere with key elements of
the homeland security agenda.
Mr. Diaz-Barlart. How much and how well is the
fragmentation that exists in jurisdiction--jurisdictional
fragmentation that exists in the area of homeland security, how
well is that balanced, offset if you will, by the consolidated
authority lodged in the Appropriations Subcommittee on Homeland
Security?
Mr. Mann. I think that was an important move taken by both
the House and the Senate to create separate homeland security
subcommittees on the Appropriations Committee, so a critical
step that was taken. But appropriators are not authorizers. The
kind of questions they ask, the concerns that they have are
oftentimes different. It is driven in many respects by the
budget process and the imperatives of the budget resolution.
The kind of questions that get asked tend not to be the larger
strategic questions, but more the questions about just how
dollars are being spent here and there. So I thought it was a
necessary step for the Congress, and certainly important,
especially important given the absence of consolidated
jurisdiction on the authorizing side, but not sufficient.
Mr. Ornstein. Let me reinforce what Tom said. Actually the
appropriations process is a good spot for oversight, and in
many respects in many areas it may be the best place for which
oversight occurs, because it occurs through that annual
process.
But the fact is that the culture of the Appropriations
Committee, which is to spread money around and to satisfy a lot
of different Members, can work very much against the
imperatives of homeland security. You can imagine, and we have
seen this, of course, before, where you have a budget to deal
with some area that ought to be concentrated in the places
where we have the most risk, and we spread it around every
district in the country or to a very large number of districts,
not with any prioritizing. And I don't think the appropriations
process is the best place to make those priority
determinations.
So you have got to have some strong entity outside. The
problem with fragmentation otherwise is, once again, just
exactly what we had before we ended up with a Department of
Homeland Security, which is all these other committees have a
longtime interest in their own cultures built around the old
functions of these agencies, and they are going to use their
resources and their pressure to push those functions, which are
appropriate functions. But if we don't have a counterweight to
make sure that the Homeland Security culture takes over, then
they are going to have even greater problems inside the
Department making things work.
So it is really necessary, it seems to me, to make sure
that we have a counterweight that appropriations will not
provide and that only you can provide, but you are not going to
provide it over the long run without having some standing
status.
Mr. Diaz-Barlart. To what extent should the House's
committee system parallel the organization of the executive
branch?
Mr. Mann. I don't think there is any need for there to be
an absolute one-to-one mapping, but when the relationship
between the committees and the executive departments is hard to
fathom, when so much change has occurred over time that they
bear little direct relationship, then I think some problematics
exist.
There is an advantage in having an Armed Services Committee
with the responsibility for an--in this case, an annual
authorization bill, and I think there would be advantages to
the House in having a Homeland Security Committee. That is not
to say, however, that every executive department needs to have
an exclusive committee dealing with it. That is impossible.
And, frankly, the reality is that problems cross departmental
boundaries. Much of government is about trying to join up
agencies and staffs across departments.
The most important function of the Cabinet today is not the
meeting of the Cabinet, but it is the Cabinet councils that are
created under the authority of the Cabinet to allow departments
to work with one another in an effective and authoritative way.
So, no one-to-one relationship.
Mr. Ornstein. I certainly agree with that. You can't ignore
the executive branch's organization, or you would have chaos
around here in terms of figuring out who had authority for what
and making sure you could have effective oversight. But you
don't want to parallel it entirely. And there are indeed going
to be areas where, if the executive branch has failed to bring
areas together under the same rubric, you may want to bring
them together so that you can be sure that there is appropriate
sensitivity paid, getting back to the example of intelligence
and homeland security now, where I am not sure--I am not
convinced at this point that the way the executive branch is
now organized or the coordinating mechanisms that they are
implementing are sufficient to make sure that we will have the
intelligence information carried out in the right way,
accumulated in the right way, or distributed around to the
appropriate people at the appropriate time. And I would love to
see Congress weigh in on this and make sure that it is done.
Mr. Diaz-Barlart. Mr. Dreier.
Mr. Dreier. Thank you very much, Mr. Chairman.
Great to see both of you, and it brings back a lot of
memories sort of in a delayed Ground Hog Day or something. It
has been 10 years since we have gotten together. I was
recalling that we had 243 witnesses and 37 different hearings a
decade ago when we had this; and maybe that was one of the
reasons that it took me a moment to remember that the
Parliamentarian was the last Parliamentarian to testify. And
Mr. Pitts just reminded me that I guess it was 10 years ago
almost to the day when Mr. Brown testified before us.
You know, I, in my opening remarks, commented on the fact
that I want to keep an open mind, but when I think about--and I
remember the two of you were recounting to me that famous
Rostenkowski meeting that took place. And I have always had a
bias towards trying to consolidate and fewer committees, and
you remember the joke that we used to always tell; that if you
walk down the hall and saw a Democrat whose name you didn't
know, it was just, hey, how you doing, Mr.Chairman, because
chances are he chaired some committee or subcommittee in the
place.
And, you know, then in 1994 we were able to take more than
a few of those recommendations and put into place a
consolidation, which, quite frankly, I believe has worked a lot
better, a hell of a lot better than many people had
anticipated. And now obviously we are in the wake of September
11th, looking at the prospect of this. And I want to keep an
open mind on this issue, but I think back. You know, you
mentioned, Norm, the fact that there were 88--the White House
has 88 committees in the House and Senate dealing with this
issue. In the 1970s, there were 83 on the issue of energy.
.Mr. Dreier. And Charlie proceeded to talk about
incrementalism and how over the years we saw much of that
absorbed. So I guess the question that I would pose to you on
this, with my bias towards reducing the number of committees
and subcommittees, obviously wanting to enhance the
deliberative nature of the institution, I don't want to do
anything that undermines our very important oversight
responsibility, I want to do what I can to encourage that--it
was interesting, you know, the Parliamentarian was proud of the
fact that there were--I guess 11 members we were. He thought it
was for his testimony. We had votes on the House floor. That is
frankly what brought people back here in the numbers that were
here, even though he and the two of you were offering very
thoughtful input. I guess my question would be what is the
argument against our establishing this as a standing committee?
I mean, other than very personally. You know, Dave Bourne and I
always joke that we dine alone because of the fact that people
would rather give up their spouse or a child than they would
jurisdiction in a committee, because there was such a high
level of frustration over that and we know we are dealing with
all these powerful committee jurisdictions. Other than the
obvious there, which we could assuage some of those concerns
that are out there, what would be the benefits to our not
putting in place a separate standing committee?
Mr. Mann. I think there are arguments. One of them is that
the House since 1974 has figured out a way to live with and
cope with jurisdictional sprawl, that the leadership working
through the Parliamentarian's office has developed strategies
of joint and sequential referral of special rules, of
scheduling, in ways that allow them, the leadership to pull the
expertise from various committees and subcommittees together in
coherent pieces of legislation. In doing so, you don't disrupt
existing patterns of expertise, of historical memory, of
staffing, that you retain some capacity for alternative
perspectives on similar problems, that you set up some
competition between teams of members who might see things
differently. All those are advantages in letting the current
system go forward as it is. I suppose the biggest advantage is
you don't have to go through the bloody process of replacing it
and establishing a standing committee.
Now, I sort of acknowledge those, I offer those in the
spirit of honestly answering your question, and yet at the same
time on balance everything I know tells me in spite of past
failures that establishing one new committee, standing
committee on homeland security, or setting that as a goal to
move towards over time is a sensible thing to do in that some
of the advantages that I have just given you from
jurisdictional sprawl can be retained in a system that still
has a focal point of a standing committee on homeland security.
Mr. Ornstein. You know, in your question was the seeds of
an answer to it, Mr. Dreier, and that is adding a committee
will mean adding a lot of subcommittees, and it becomes even
more of an additive process. We end up with more members spread
thinner and end up more fragmented. Probably you are not going
to have people who go on this committees who will not give up
other committee assignments or at least they won't give up
everything and we will end up with bigger institutional
problems.
If you remember back 10 years ago, one of the things we
recommended most strongly and we recommended it as strongly as
jurisdictional change was to get a handle on the total number
of assignments that Members have, which has proliferated
enormously and which have led to the reality, as we were saying
earlier, that in the dozens of times we have testified the vast
majority of them have been in front of one person because
people have many, many other things to do, and that doesn't
enhance the deliberative process.
So you have to be very careful every time a new problem
comes up that you don't want to simply create a new committee
and add it on to what you have done. Ideally if we were doing
this, we would make some other changes in this process. A
little less than ideally, but close to it would be that if we
go ahead and do this we really do get rules and leadership
action that begins to clamp down on the proliferation of
assignments that people have so that you don't have a lot of
people with three, four and five major committees, because
everybody likes to add them on. It looks good on the masthead,
the letterhead. You don't have to be there often to be able to
have more clout. Given what you have done with the proxy, the
more you expand the number of assignments the greater problem
comes in in each of the committees anyhow. But it makes it a
little bit easier to cut down on some of those numbers and
maybe you are not going to going to do that.
Even with that I think this problem is so big and is
clearly so enduring, this is not a 3 or 4-year problem that is
just going to disappear, weapons of mass destruction that are
easily and readily available to all kinds of actors out there,
the fact that Iran it appears is very close to having lots of
different ways of getting nuclear weapons that will spread
through the region and that will create another set of
problems, all of those things argue that homeland security is a
critically important problem that will be with us for a long
time. It is going to require coordination across a lot of
areas. And if Congress doesn't find a way itself to coordinate
and to oversee what the executive branch does in a coordinated
fashion it will be a mistake.
Mr. Dreier. Let me tell you my letterhead has three words
when it comes to that department. It says Committee on Rules
and nobody knows what the heck that is any way. So I don't get
a lot of play on that.
Mr. Ornstein. We know.
Mr. Dreier. Let me thank you all very much for your very,
very thoughtful presentation and the time and energy that you
have spent on this. I appreciate it. I apologize for the fact
that there will be one fewer member now at this hearing because
I have to leave myself. But thank you all very much.
Mr. Diaz-Barlart. Mr. Meek.
Mr. Meek. Thank you so very much, Mr. Chairman. I am
excited about being on this subcommittee because as a freshman
I am just glad to be on something that says Rules. That is
wonderful. It is a great thing.
Let me move this mike here. You don't look attractive with
a mike coming out of your ear. I thought I would share that
with you.
That was really the question that I think is going to not
only plague this committee but this Congress, especially the
House, on how we are going to oversee one of the largest
agencies in the Federal Government. And when we created this
select committee we had so many people, not only back home but
here in the Capitol feeling a sense of this committee is going
to have so much responsibility and oversight and direction and
finally there is a committee that is going to question the
executive branch for whatever knee-jerk reaction, good or bad,
that it may make. And the department will have some sense of
patience and may move hastily and in a direction if we were to
have a terrorist attack.
Now knowing that we have this effort against terrorism
nationally, internationally, this is going to be an agency that
needs preventative maintenance. I am trying to form the correct
argument, Mr. Chairman. I am so glad that we are--chairman of
this committee and the full committee--I am glad that we are
having this discussion because we are going to have to not only
explain in the different cloakrooms but also as it relates to
members who have power now, I am on X committee and it says
Homeland. Like I said, I am glad to be on the Rules Committee.
They don't want to let that go. That may not necessarily be the
best way to not only maintain but have oversight over such a
huge agency. And I know that you have already commented on it
is easier said than done but needed.
I don't see this--you know, Norm, you mentioned this--it is
not a going away kind of situation. This is like Social
Security, Medicaid, Medicare. That is the way I am looking at
Homeland now. I don't know how we argue that to our colleagues
because you have chairmen that are on this committee that are
fighting for their turf. How do you get them to relinquish that
turf and move forward on behalf of the country?
That is to both of you.
Mr. Ornstein. This is not going to be easy. It is going to
take a sustained effort. It isn't going to happen this
Congress. I am hopeful that we can build toward having
something at the beginning of the next Congress. It is going to
take some work in public education and making this a larger
public issue, in which I hope we can help. But as I said
earlier, it is also going to take some work with the
leadership.
One example here is an issue area I followed for different
reasons. We clearly have a problem with--a telecommunications
problem in homeland security with something we saw on September
11th, when we had all of these at the Pentagon, we had all of
these emergency rescue teams come in from Montgomery and Prince
George's County in Maryland and Arlington and Fairfax Counties
in Virginia and they couldn't communicate with one another. We
have got a larger problem with different slices of the spectrum
allocated in ways that make emergency communication difficult
and also have ended up freezing the cell phone system so nobody
can communicate at the time of an emergency, and it requires a
serious rethinking.
Some of that responsibility falls with the new department.
They got a million things that they are doing. Obviously it is
within the jurisdiction of the Commerce Committee. But they are
not necessarily going to start thinking along homeland security
lines. They have got other things that they are doing. This is
a place where having some kind of shared jurisdiction or having
the focus of a department can make a difference, but just the
select committee focus, the oversight focus probably isn't
enough to use the bully pulpit in that area.
So it is a whole number of areas where obviously some level
of jurisdictional clout could matter here. And maybe as we
raise some of those, we can get some larger understanding of
this and maybe overcome some of the misgivings of the old bulls
otherwise. But we should, you know, we should go into this with
a very clear-headed understanding that just as with every
example we have had in the past, it is a steeply uphill battle.
Mr. Meek. Let me on the shared jurisdiction part, if you
were--the bulk of you were to really look at it, what would you
take, not cherry picking, but there is a sense of
responsibility. I hate to say this and God forbid if something
happens here in the homeland. The chairman is going to be front
and center on every news channel that is available: You are
Chairman of Homeland Security, how could this happen? What is
the oversight? What has the committee done? Well, we kind of
share this with other committees. It is almost like who has
responsibility over homeland security and you can do one of
these numbers: Well, it is him or it is them or they had
oversight, we really don't but we are called Homeland.
If we can push the leadership in that direction, I think
would be helpful. But once again very powerful individuals in
this process will have to give up something for that to happen.
I had a town hall meeting recently in my district and a lot
of the front line people, cities, counties, we have made all
these changes but we haven't seen any difference in those
changes. We haven't heard from the department. I think it is
good that we have this committee because we are able to give
the department input that they probably won't get because they
don't have representation in 100--is it 435, 535 or so
districts throughout the Nation. So as we move along, I think
you are right this will not happen tomorrow but on behalf--
maybe an event here in the homeland may spearhead a little more
targeting.
I hate to say it, I used to be a state trooper. We don't
get a street light until we have five casualties at that
intersection and all of a sudden we need a street light.
I am glad to serve on this committee so that we can
hopefully share with our colleagues and lobby our colleagues in
the leadership to be able to make this happen.
Mr. Ornstein. Let me add one thing, Mr. Meek, and that is
if we think about how this could work in practice, it seems to
me we have to revise rule X and certainly you need a committee
that would have authorizing authority--oversight authority for
the new department, but obviously authorizing authority would
immediately challenge those who authorize, have authorization
authority over the INS and these other major agencies. Here is
where some serious thought into the way in which the ad hoc
Energy Committee that Speaker O'Neill created may be worth
doing. It may be that we can create a kind of new process with
a Speaker playing a very considerable role where you handle the
overall authorization but the other departments also take
primary jurisdiction over the authorization for the individual
agencies under time deadlines set by the Speaker and then you
get together in a coordinating fashion and you have some shared
responsibility as they did when the authorization comes to the
floor. And that might be at least one way to think about
rewriting the rule to create this flexible process.
Mr. Diaz-Barlart. Thank you very much.
Mr. Cox.
Mr. Cox. Thank you, Mr. Chairman. Thank you very much, as
always, for your attention to the way that Congress operates
and the way that we might improve the institution. Your
testimony I think was very clear on the main point before us.
Your joint testimony that you formally submitted that states
the reason for creating a permanent standing committee with
primary jurisdiction is clear. I just want to make sure that I
understand for the record with respect to each of your
testimonies, do you favor creating a permanent standing
committee with primary jurisdiction over homeland security?
Mr. Ornstein. Yes.
Mr. Mann. Yes.
Mr. Cox. I didn't think there was any question about that.
I wanted to be sure, particularly because you did such an
excellent job of responding to Chairman Dreier, who asked you
to play devil's advocate and argue against the proposition you
came to testify in support of.
Second, you point out that the Homeland Security Act
states, reading from the act, each House of Congress should
review its committee structure in light of the reorganization
of responsibilities within the executive branch. Now, that was
an instruction not only to the House, the sense of the
Congress, but an instruction quite serious nonetheless because
it was enacted by Congress, instruction to the House and to the
Senate. How do you believe, how do you evaluate the job that
the Senate is doing?
Mr. Mann. Sort of my view is not particularly well.
Mr. Cox. I guess I would make it more clear. Are they doing
anything formally that we know of?
Mr. Mann. No. All they have done is refer, if you will, a
sort of--as I understand it, the primary jurisdiction for the
law establishing the Department of Homeland Security to the
Governmental Affairs Committee, but haven't in any way
reorganized jurisdictions from other committees to set up joint
jurisdictions. As best as I can tell, the only real change in
the Senate is the parallel to the House on the Appropriation
Subcommittee.
Mr. Ornstein. Unless they are acting as the White House did
and going to some secret situation room every night to plot
their plan for reorganizing the committee system, which I
doubt, there is no action. There has been no effort made that I
can see to get either the Rules Committee or some new entity, a
select committee, going to think this process through. No
Senator has suggested that I know of that they act in this
area, and it is frankly not good. It is distressing. You have
created a mechanism at least for coordinating, focusing on
things, being able to do what Congress should be doing right
now, at least as we get a new department under way, and make
sure there aren't things lost between the cracks or problems
across agency lines that are highlighted and a venue for people
to come and talk about such things or to offer complaints or
problem areas, and they have been. I don't know it frankly.
Mr. Cox. Of course the Appropriations Committee in the
Senate has restructured itself. So it is the authorizing side
that remains to be dealt with. I wanted to ask you, given that
state of affairs in the Senate, what, if any, impact do you
think that has on our effort here in the House?
Mr. Ornstein. At one level in the short run it will make it
more complicated for you and it will make it harder for you.
But at the same time my guess is that as we see the Senate fall
very far short of its responsibilities in oversight or in
coordination, it will underscore the need to do what you have
started to do and have been working toward. But obviously if
you created a committee and began the process of coordinating
the authorization of the new department and the Senate did
nothing, it would make for a very weird set of conferences that
would be even stranger than some of the ones we have seen
before with a floating group of people coming in and out for
each of the different pieces it has, which can't be good for
making policy.
Mr. Cox. I think that is destined to happen if we don't
change because the mission of the Department of Homeland
Security and indeed the mission of the Federal Government now
as it pertains to fighting terrorism on our domestic turf is to
restructure the executive branch so that a responsibility that
right now is merely defined by the margins of the
responsibilities of multiple agencies is the bureaucratic
equivalent of that ball that drops in the middle of the
outfield while all the fielders meet in areas where they are
right field, center field, left field, might have them be
limited to where they can run to catch the ball. So we are
trying to get agencies that have worked in parallel in the past
to start talking to each other and share. Every bit of
legislation that we enact with respect to homeland security
almost certainly is going to be redefining those margins.
Therefore, if we don't restructure Congress because of the
nature of our work here and the nature of the problem in the
executive branch, we are going to have a half dozen or more
congressional committees that all say that is me, that is me,
that is me. Most pointedly we are going to go out to NORTHCOM
on the way out to Los Angeles mid-June and take a look at DOD's
effort to address the domestic terror threat, but you know we
have in the middle of the Homeland Security Act a statement
that the Department of Homeland Security is not responsible for
warfighting and it is not responsible for the military defense
of the United States. Now, I think what people have in mind is
that we are not going to have a contest in the chain of command
between the Secretary of Defense and the Secretary of Homeland
Security, and that is a good thing that we put that in the
statute. But to say that Homeland Security is not responsible
for warfighting, we got to push a little bit on that definition
and say what happens now is if the war is fought here and what
happens if it is not fought using tanks and soldiers. What
happens if instead the opening day of the war is 23 shopping
centers are blown up in 23 different cities in the United
States. Is that a war we are in? Is DHS prevented from waging
that war on our behalf? Does NORTHCOM or the Department of
Defense think they are in charge of fighting it? If so, how do
they fight it, posse comitatus and so on? We have all these
questions that we have to start asking ourselves. But they
literally define the margins of everyone's responsibility.
So if Congress doesn't redefine itself so that this is the
center lane of somebody's concern rather than everybody's
marginal concern, I think we are going to have a hell of a time
passing any descent legislation or, worse yet, conducting any
thorough oversight.
I want to conclude by commending you on your recommendation
that the Speaker establish his own coordination mechanism
regulating the required testimony of DHS officials before
committees and subcommittees because obviously 88 on the Hill
is too many. In the House what we are doing to address this
problem at the request of the Speaker and the majority leader
is to use this select committee as the coordinating mechanism.
That doesn't mean that other committees might not under
appropriate circumstances have department personnel come
testify there instead of in front of this committee. What it
means though is we are the clearinghouse for all those requests
and there won't be replication of effort among multiple
committees.
So I think thus far I think that has been working very
well. It may not be evident to the naked eye, but behind the
scenes there is coordination is going on. It is one of the
first dividends that is being paid to us from having all these
committee chairs on this committee. So your recommendation is
very sound. I don't know what we are doing on the Senate side
to achieve that result.
Mr. Mann. If I may say that your discussion of the, if you
will, the war making authority in the example of the shopping
centers is precisely the kind of question that I believe will
get asked only by having a focus of sustained attention built
into the organization of Congress where members like yourselves
ask such questions and then proceed to get the follow up and
get answers so that we think through in advance of the need to
respond appropriately.
Mr. Ornstein. You also, I think, have highlighted another
very interesting issue, which is that for the Speaker the
headaches that exist trying to create a standing committee in
dealing with the committee chairs might very well be exceeded
if we don't move in that direction and we have these kinds of
problems and all these competing claimants. So this may be a
part of the process of making the leaders understand that not
acting could prove even more frustrating than biting the bullet
and going ahead and making sure we have an entity with real
importance and reach and clout.
Mr. Cox. I think Congressman Meek stated that very clearly.
It is inevitable if there is an attack on the country the
fingers are going to be pointing everywhere. The first place is
the President and the next place is the Secretary and the next
place is to us, and there is no escaping that. It shouldn't be,
however, the political downside risk that concern us most but
rather the fact that there might well be some credibility in
such charges if we don't occupy the center ground of what is
now the new jurisdiction, the new turf of Homeland Security
with an oversight committee and a legislative committee that
has the power to go in and get the job done right.
Mr. Diaz-Barlart. It doesn't seem like a possibility, but
should there be a Joint Committee on Homeland Security?
Mr. Ornstein. No, they never work. You know, we ended up in
1976 basically abolishing the joint committees because it
simply can't when you have 100 Senators and 435 House members
create the right kind of balance. Rotating chairmanships. If
you look back at the history of joint committees, the Joint
Economic Committee is basically--it did have an authorization,
but it basically is a select committee in effect. Worked well
for a while but eventually it lost its focus. The same was true
of the Joint Committee on Atomic Energy.
Frankly to have joint committees on taxation and the like,
they are just devices. They are not really joint committees.
They might just as well be--we ought to shift the Joint
Committee on Taxation into a Congressional Tax Office like the
Congressional Budget Office, but that is not the way to go.
Mr. Mann. I agree with that.
Mr. Diaz-Barlart. Thank you so much. Your testimony has
been extraordinarily helpful and we are very, very thankful.
The hearing is hereby closed.
SUPPLEMENTAL INFORMATION FROM CHARLES W. JOHNSON
July 10, 2003
Hon. Lincoln Diaz Chairman
Subcommittee on Rules, Select Committee on Homeland Security
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
Thank you for your recent inquiry regarding the referral of
measures to the Select Committee on Homeland Security. There are many
issues that need to be addressed by the House regarding jurisdiction
over the Department of Homeland Security. Many of those issues might be
addressed by the various entities tasked with that responsibility, such
as the Select Committee on Homeland Security. For example, any proposal
to establish a new standing committee would also include a proposed
jurisdictional statement in clause 1 of rule X that would guide the
Speaker's future referrals. Such a grant of affirmative jurisdiction
within the rule X rubric would supplant the Speaker's current unique
discretionary referral authority.
The starting point for the Select Committee's jurisdiction is
section 4 of House Resolution 5. It states, in pertinent part, that the
Select Committee may develop recommendations on ``such matters that
relate to the Homeland Security Act of 2002 (P.L. 107-296) as may be
referred to it by the Speaker.'' Informing this jurisdictional
statement were the Speaker's remarks preceding the adoption of House
Resolution 5. In that statement, the Speaker indicated his belief that
the creation of the Select Committee would not perturb the existing
areas of jurisdiction of the standing committees and the Permanent
Select Committee on Intelligence. See 149 Cong. Rec. H5 (daily ed.
January 7, 2003). The putative chairman of the Committee on Rules
echoed this sentiment. See Id. at H15.
This dichotomy between acknowledging the jurisdictional interest of
a new select committee and maintaining the jurisdiction of the existing
standing committees and the Permanent Select Committee on Intelligence
can be seen in the referrals that have been made thus far to the Select
Committee. It would seem that the category of bills you refer to as
addressing ``first responder grants'' (H.R. 1007, 1389, 1449, 1803, and
1915) exemplifies this jurisdictional overlap. Other categories of
bills you have cited, namely those addressing agencies and offices that
have been transferred into the Department of Homeland Security, such as
the Coast Guard or the Immigration and Naturalization Service, would
seem to indicate a choice by the Speaker to allow the committee with
jurisdiction over the matter an initial opportunity to review the bill.
Under clause 1 of rule X, the Committee on Transportation and
Infrastructure has jurisdiction over the ``Coast Guard'' and the
Committee on the Judiciary over ``immigration and naturalization.''
In an appropriate case, the Speaker retains the power to make a
sequential referral to the Select Committee of a bill not referred
there on the date of introduction. Thus it is important to note that
the Speaker's referrals to date do not necessarily indicate the breadth
or depth of the Select Committee's jurisdiction to review the work
product of the standing committees and the Permanent Select Committee
on Intelligence. At the time the committee of initial referral reports
a bill to the House, the Speaker may respond to a request by the
chairman of the Select Committee for a sequential referral to review
the recommendations of that committee. In this way, the Speaker might
navigate the very dichotomy that has prompted your insightful
questions.
Lastly, would note the Speaker's referral of H.R. 1416, the
Homeland Security Technical Corrections Act of 2003. The Select
Committee received the referral of that measure, reported it to the
House, and then managed it on the House floor under suspension of the
rules. In addition to its being a measure that ``relate to the Homeland
Security Act of 2002,'' this referral calls to mind a statement by the
putative chairman of the Committee on Rules on the day the Select
Committee was created. On that day, he projected that the Select
Committee might have jurisdiction over a bill making technical
corrections to the Homeland Security Act of 2002. See 149 Cong. Rec.
H12 (daily ed. January 7, 2003). The Select Committee subsequently
reported the measure and managed it on the House floor.
I hope you find this helpful.
Sincerely,
Charles W. Johnson, Parliamentarian
[Whereupon, at 8:25 p.m., the subcommittee was adjourned.]