[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                     ADMINISTRATIVE CONFERENCE OF 
                           THE UNITED STATES

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 20, 2010

                               __________

                           Serial No. 111-127

                               __________

         Printed for the use of the Committee on the Judiciary


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




                  U.S. GOVERNMENT PRINTING OFFICE
56-524                    WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202ï¿½09512ï¿½091800, or 866ï¿½09512ï¿½091800 (toll-free). E-mail, [email protected].  


                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

           Subcommittee on Commercial and Administrative Law

                    STEVE COHEN, Tennessee, Chairman

WILLIAM D. DELAHUNT, Massachusetts   TRENT FRANKS, Arizona
MELVIN L. WATT, North Carolina       JIM JORDAN, Ohio
DANIEL MAFFEI, New York              HOWARD COBLE, North Carolina
ZOE LOFGREN, California              DARRELL E. ISSA, California
HENRY C. ``HANK'' JOHNSON, Jr.,      J. RANDY FORBES, Virginia
  Georgia                            STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia
JOHN CONYERS, Jr., Michigan
JUDY CHU, California

                     Michone Johnson, Chief Counsel

                    Daniel Flores, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              MAY 20, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Chairman, Subcommittee on Commercial 
  and Administrative Law.........................................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on 
  Commercial and Administrative Law..............................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on Commercial and 
  Administrative Law.............................................     3
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     4

                               WITNESSES

The Honorable Stephen G. Breyer, Associate Justice, U.S. Supreme 
  Court, Washington, DC
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
The Honorable Antonin G. Scalia, Associate Justice, U.S. Supreme 
  Court, Washington, DC
  Oral Testimony.................................................    20
  Prepared Statement.............................................    21
Mr. Paul R. Verkuil, Chairman, Administrative Conference of the 
  United States
  Oral Testimony.................................................    44
  Prepared Statement.............................................    47
Ms. Sally Katzen, Executive Managing Director, Podesta Group
  Oral Testimony.................................................    60
  Prepared Statement.............................................    62
Mr. Jeffrey S. Lubbers, Professor of Practice in Administrative 
  Law, American University Washington College of Law
  Oral Testimony.................................................    68
  Prepared Statement.............................................    71
Curtis W. Copeland, Ph.D., Specialist in American National 
  Government, Congressional Research Service
  Oral Testimony.................................................    77
  Prepared Statement.............................................    79

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Ranking Member, 
  Committee on the Judiciary.....................................     6
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on Commercial and Administrative Law..    12

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from the American Bar Association (ABA)...................    95


                     ADMINISTRATIVE CONFERENCE OF 
                           THE UNITED STATES

                              ----------                              


                         THURSDAY, MAY 20, 2010

              House of Representatives,    
                     Subcommittee on Commercial    
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:33 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Steve 
Cohen (Chairman of the Subcommittee) presiding.
    Present: Representatives Cohen, Conyers, Delahunt, Johnson, 
Franks, Smith, Coble, and King.
    Staff present: (Majority) Carol Chodroff, Counsel; Michone 
Johnson, Subcommittee Chief Counsel; Susan Jensen, Counsel; 
Reuben Goetzl, Staff Assistant; and Daniel Flores, Minority 
Counsel.
    Mr. Cohen. And the red coats are here, as I earlier 
announced. The red coats are coming. This hearing of the 
Committee on the Judiciary, Subcommittee on Commercial 
Administrative Law and place of the redcoats will now come to 
order. Without objection, the Chair will be authorized to 
declare a recess of the hearing. I recognize myself for a short 
statement.
    Exactly 6 years ago today, Justice Breyer and Justice 
Scalia testified before the Subcommittee on reauthorizing ACUS, 
the Administrative Conference of the United States, and thus I 
would like to welcome you both back, along with the newly 
appointed chair of ACUS and our other prominent witnesses.
    ACUS is an agency of the United States Federal Government 
charged with making recommendations for the improvement of 
administrative agencies and their procedures, particularly with 
respect to efficiency and fairness in the rulemaking process. 
It is considered both an independent agency and a Federal 
advisory committee and develops recommendations for improving 
the fairness and effectiveness of rulemaking, education, 
licensing, investigative and other functions by which Federal 
agencies administer government programs.
    Over the course of its 28-year history, ACUS has issued 
more than 200 recommendations, some of which were government-
wide, and others were agency specific. It issued a series of 
recommendations eliminating a variety of technical impediments 
to the judicial review of agency action and encouraging less 
costly consensual alternatives to litigation.
    The proofs of these efforts include the enactment of the 
Administrative Dispute Resolution Act of 1990, which 
established a framework for the use of ADR. ACUS also serves as 
a resource for Members of Congress, congressional committees, 
Internal Revenue Service, the Department of Transportation and 
the Federal Trade Commission.
    ACUS has been praised for yielding tremendous cost savings 
and promoting efficiency by obtaining expert legal advice from 
private sector lawyers that would otherwise cost hundreds or 
thousands of dollars, as inflation has increased per hour. It 
also may save significant funds through some of its 
recommendations.
    But the true value of ACUS is that it promotes greater 
fairness in the promulgation of agency rules in the 
administrative process. Every individual in this country 
depends in one way or another upon Federal agencies and 
scientific evidence informed regulations that protect the 
Nation's health, safety and welfare.
    We are facing significant issues in the country now, issues 
concerning the environment, health care, national security, 
privacy, public participation in the Internet, and the economy, 
among others. We have a tremendous need for effective, fair and 
strong regulations based on sound evidence and science. Through 
its work and recommendations, ACUS helps to promote and ensure 
fairness in the administrative process.
    It is my hope that today's hearing will serve as a 
welcoming forum and a launching pad as ACUS begins its second 
incarnation. I look forward to hearing from all of our 
witnesses today about how Congress can help support ACUS and 
its work. I also look forward to hearing from our esteemed 
witnesses what issues ACUS might prioritize in this new 
Administration.
    I would like to note that ACUS is currently authorized 
through 2011, and I intend to introduce legislation in this 
Congress to ensure that ACUS is reauthorized in a timely 
fashion, all of which is subject to the whims and caprices of 
the Chair of the Committee.
    I now recognize my colleague, Mr. Franks, the distinguished 
Ranking Member of the Subcommittee, for his opening remarks.
    Mr. Franks. Well, thank you, Mr. Chairman. I just want to 
extend a sincere and hearty welcome to Justice Scalia and 
Justice Breyer, Chairman Verkuil, and really any other 
witnesses that may be here today. It is not often that a 
sitting Supreme Court justice graces our hearing chamber, let 
alone two, and I couldn't be happier to hear from both of you 
very distinguished panelists, to say the least.
    From its beginnings in the 1960's, the Administrative 
Conference of the United States was a constant source of 
innovation in administrative law and practice. It actively 
sought out the best ideas from the private sector and public 
sector to make our government work better. It helped government 
in important ways to be more efficient, more effective and more 
responsive.
    Starting in the mid-1990's, the conference was authorized 
by legislation, but it lacked the funding to carry out 
operations. And now, thanks to the bipartisan leadership of the 
Judiciary Committee and this Commercial and Administrative Law 
Committee, Mr. Chairman, it has come back to life. And we all 
look forward to the contributions the conference can make to 
administrative reform in the years to come.
    Today we have an opportunity to explore a number of 
questions. Two sets of questions are really at the top of my 
own list. First, what should the conferences policy agenda be 
as it resumes operations? And second, what practical challenges 
does the conference confront as it begins anew from scratch, 
and how can Congress help the conference to overcome those 
fundamental challenges?
    Now, with regard to the first set of questions, I believe 
that the conference priorities should be clear. It has been the 
better part of a century since the Administrative Procedure Act 
became law in 1946. And since then, while the basic structure 
of the APA has been maintained, the size, the scope and nature 
of the regulatory state has expanded beyond the 79th Congress' 
wildest imaginations, to say the least.
    It is time to modernize the APA to keep pace with the times 
and make the regulatory bureaucracy more transparent, more 
responsive and, of course, more accountable. In the 108th and 
109th Congresses, our Subcommittee engaged this task through 
the Administrative Law Process and Procedure Project for the 
21st Century. In 2006 we issued an interim report that 
identified nearly 75 issues in seven key areas for further 
investigation and possible legislation. These issues were 
identified with the hope that the conference could be revived, 
study them further, and help us to identify the best possible 
reforms.
    Now, I believe that the issues specified in our 2006 report 
present the conference with a ready-made charter of its 
priorities as it resumes operations. I don't want to sound 
presumptuous here. That is what they wrote.
    With regard to the second set of APA questions, Chairman 
Verkuil has identified in his written statement a number of 
operational challenges that the conference confronts as it gets 
off the ground. I hope that each of our witnesses today can 
help us determine whether there are any legislative remedies or 
oversight activities with which the Congress can help the 
conference. And certainly, we are here to lend our support in 
whatever way that we can.
    And as others have said before, the government that governs 
best governs least. And when the government does govern, it 
should govern at its best, of course. And to help us achieve 
that goal is the conference's vital mission, and I certainly 
wish it every success.
    And I welcome both of you again here today.
    Thank you, Mr. Chairman.
    Mr. Cohen. I thank the gentleman for his comments and 
statement and remarks.
    And I would like to ask the Members who have opening 
statements to submit them for the record, although we always 
recognize our distinguished Chairman, Mr. Conyers, if he would 
choose to make a statement.
    Mr. Conyers. Thank you. Thank you, Chairman.
    It is always a privilege when members of the court join us 
for the discussion, and the two that are before us are becoming 
well known in terms of the kinds of discussions that we engage 
in. And now that this conference is up and running--we have got 
a chairman--I think it is being looked at with fresh sets of 
eyes.
    That is, the role of the conference is different from 
nearly every other part of the government, and under these 
circumstances that exist, it is very important in terms of what 
possibilities that are in front of it and that are open to it. 
And we couldn't start this examination off with two people that 
have been more intimately connected with the conference.
    And so I am always pleased when the Judiciary Committee and 
members of the highest court can join us in the way that we are 
brought together today. So we all welcome your appearance and 
look forward to the discussion ahead.
    Mr. Cohen. Thank you, Mr. Chairman.
    And for the last Member to make a statement, I will 
recognize the Ranking Member, my friend from Texas, Mr. Smith
    Mr. Smith. Thank you, Mr. Chairman.
    Justice Scalia, Justice Breyer, we are truly honored by 
your presence, and we look forward to your comments today as 
well.
    The Administrative Conference of the United States is an 
important institution recently revived by Congress. As a 
tightly focused, historically successful nonpartisan body, it 
offers an outstanding forum for innovation in administrative 
law and practice. I am glad that it will once again be able to 
make unique contributions to administrative reform.
    Since the conference last operated in the mid-1990's, a 
number of things have changed. Important Supreme Court 
precedents on administrative law have been handed down. New 
challenges have come before administrative agencies. And the 
economy has entered a period of difficulty we hardly could have 
foreseen 15 years ago.
    One thing, however, has not changed. It has always been 
important for administrative agencies to be open, efficient, 
effective and accountable. That has never been truer than 
today, as regulated individuals and companies fight intense 
economic headwinds. Now more than ever we need administrative 
reform to ensure that our administrative agencies are 
responsive, do not excessively burden our economy, and do not 
kill jobs. The Subcommittee on Commercial and Administrative 
Law and the Administrative Conference of the United States can 
and must be on the front lines of that effort.
    In the last two Congresses, the Subcommittee undertook a 
major reform project called the Administrative Law Process and 
Procedure Project for the 21st Century. In its 2006 interim 
report on this subject, a Subcommittee identified a host of 
issues for further investigation and potential legislation. 
These included topics ranging from electronic rulemaking to 
negotiating rulemaking to congressional, presidential and 
judicial review of rules. They also included regulatory 
analysis and accountability requirements, the role of science, 
and the agency adjudicatory process.
    I hope that in this Congress and in the next one, with the 
conference's help, we will continue and complete our 
examination of these issues and produce the needed legislation. 
I have invited the Office of Management and Budget (OMB) and 
its Office of Information and Regulatory Affairs to work with 
us on these issues as well. Today, these overtures have not 
been returned, and that is greatly disappointing. It must not, 
however, delay our work.
    With the conference up and running, perhaps OMB will find a 
renewed enthusiasm to join us in this effort. OMB surely can 
help us, and both the Committee and the conference surely can 
help OMB as it evaluates its role in Federal rulemaking under 
Executive Order 12866.
    Mr. Chairman, I would like to ask unanimous consent to 
submit my letters to OMB and the Office of Information and 
Regulatory Affairs for the record.
    Mr. Cohen. Without objection, it will be done.
    [The information referred to follows:]
 Material submitted by the Honorable Lamar Smith, a Representative in 
Congress from the State of Texas, and Ranking Member, Committee on the 
                               Judiciary










                               __________
                               
                               
                               
                               
                               __________

    Mr. Smith. Thank you, Mr. Chairman.
    The call from the public is clear. The people who bear the 
weight imposed by Federal agencies want agencies to be 
transparent, to listen, and not impose unfair burdens. They 
also want to hold Federal agencies accountable. Congress' and 
the conference's efforts, particularly their efforts on major 
reform, must serve those interests.
    Thank you, Mr. Chairman. Yield back and look forward to the 
justices' testimony.
    Mr. Cohen. Thank you, sir. Appreciate your statement.
    Without objection, other Members' statements, their opening 
statements, will be included in the record.
    [The prepared statement of Mr. Johnson follows:]

 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
           Subcommittee on Commercial and Administrative Law





                               __________

    Mr. Cohen. I am now pleased to introduce our first panel of 
witnesses.
    And I want to thank all the witnesses for your willingness 
to participate in today's hearing. Without objection, your 
written statements will be placed in the record. We would ask 
you to limit your oral remarks to 5 minutes. We have a lighting 
system that starts with the green light. That means that you 
are in the first 4 minutes of your comments. At the 4-minute 
mark, it becomes yellow, and at the 5-minute mark, it goes red, 
and that means you are supposed to have ended your speech.
    After each witness has presented his or her testimony, 
Subcommittee Members will ask questions, subject to the same 5-
minute limit.
    We have a very distinguished panel before us. Our first 
witness is Associate Justice Stephen Breyer. In 1994 he was 
appointed to the Supreme Court by President William Jefferson 
Clinton. Prior to that appointment, Justice Breyer taught law 
for quite a few years at Harvard, and he has worked as a 
Supreme Court law clerk, Justice Department lawyer, and 
assistant Watergate special prosecutor, chief counsel of the 
Senate Judiciary Committee, and judicial conference liaison to 
ACUS.
    In 1990 he was appointed an appellate court judge--my 
script says by President Carter. That is not right. Was it 1980 
or was it President--I would think it was 1980. 1980? Court of 
Appeals. Excellent. I knew 1990 would have been quite a trick 
for President Carter.
    Justice Breyer has written books and articles about 
administrative law, regulation, the Constitution, and is an 
expert on his own biography.
    Thank you, Justice Breyer, for being here, and please begin 
your testimony.
    You need to turn your microphone--

    TESTIMONY OF THE HONORABLE STEPHEN G. BREYER, ASSOCIATE 
          JUSTICE, U.S. SUPREME COURT, WASHINGTON, DC

    Justice Breyer. Oh, I see. Well, thank you very much for 
inviting me. And I think my colleague, Justice Scalia, feels 
the same, and he was actually the chairman of the 
Administrative Conference. I was a member of it, representing 
the judiciary, for a few years.
    We have a long history of excellent chairmen. He was an 
excellent chairman. Sally Katzen, whom you will hear from, was 
an excellent chairman. Now your new chairman, Paul Verkuil, has 
loads of experience in administrative law, technical matters, 
as well as having run large institutions like William and Mary. 
And so it is a good history have here.
    Now, I think I can speak for him in this.
    All right?
    Justice Scalia. Absolutely. You usually----
    Justice Breyer. You don't know what I am going to say.
    Justice Scalia. You usually----
    Justice Breyer. Gotcha. No, just it is----
    Justice Scalia [continuing]. Even though I disagree with 
you.
    Justice Breyer. Never.
    What is terribly good, I think, is that you are here and 
that you are interested in this subject, because almost by 
definition the subject matter of the Administrative Conference 
is somewhat technical and usually below the radar of those who 
are elected public officials. And in a way that is why it can 
be effective, and that is why it is important.
    The subject that they are a part of to me is a question 
that has bothered human beings in democracies and even before. 
How do we control the regulator? Who is going to regulate the 
regulator? How do we assure that a system of regulation or 
administration is efficient? How do we assure that it is fair? 
How do we assure that it is effective?
    Now, those are three questions that are just as important 
today as they were 1,000 years ago. And they are just as 
important today as they were 6 years ago when we testified. 
Now, what part of this big question does this group of the 
Administrative Conference of the United States answer?
    Well, sometimes people get very bad treatment in the 
agencies of the government, and then they go to you as 
individuals, or maybe they go to an inspector general or maybe 
they go to somebody in the agency they complain to that isn't 
their job. Or maybe sometimes the policy at issue is just 
people think the wrong policy, or maybe you think that. And 
then they are back here again, and they are back asking you to 
change the legislation.
    But in between those two things there is a whole layer of 
terribly important decisions to be made, and those are 
administrative agency decisions. And that is how Justice 
Scalia, who taught administrative law for a long time, and I, 
who also did, made our living for quite a while. And it wasn't 
good just for that reason. It was good and important, because 
they affect millions and millions and millions of Americans.
    So the question that often is too technical or too 
nonpolitical for it to force itself onto your agenda, but where 
there is often quite a lot of work to be done, is on the fairly 
technical questions of improving the procedures within the 
administrative agency. And different nations have different 
ways of going about it. Different ones have different councils 
or groups. Well, our way of going about it is called the 
Administrative Conference of the United States at the Federal 
level, and it often helps. How?
    Well, first they brought together four groups of people, 
who do not always talk to each other so often or over such a 
wide range of subject matter. Those were staff of different 
agencies, heads of different agencies, outside lawyers and 
others who are not to do with the government but practice 
before those agencies and knew something about it, and 
academics.
    And they would say to the academic, ``Write a study.'' And 
the academic could actually go and ask these people, who knew a 
lot of the practical things about it, and didn't just have to 
look at books. So they would get a study, and then the study 
would be criticized. And then it would be ending up with some 
recommendations maybe on some subject matter such as how do we 
improve notice and comment rulemaking.
    You know, you can say the words and a lot of people fall 
asleep by the time you finish the word ``rulemaking.'' But if 
you go to a foreign country and you say, ``You know, we have a 
system in the United States which means the public doesn't vote 
on every detail, because it can't, but it also is a way of 
getting the public involved so people in the agencies, who may 
be too insulated, can find out what they think and can learn 
something about their experience--it is called notice and 
comment rulemaking,'' their ears pick up, because they want to 
know how it works.
    So they will do studies. How do we make it not too long? 
How do we actually get public involvement without dragging the 
whole thing not forever? How can we be sure the agency listens 
to relevant things without having to listen to every single 
individual, because there might be 5 million of them. That is 
where the studies come in.
    Now, Justice Scalia has listed several instances from 
history. Our history is 6 years ago and more. I have listed 
some. I think they are important. He thinks they are important. 
So all we can say is where I started. I am really very, very 
glad indeed that you are here, because it shows support for 
this institution, and I think that institution, the 
Administrative Conference, is important to the ordinary 
American, even if he has never heard its name.
    Mr. Cohen. Thank you, sir, and although you have a red 
light, if you would like to talk further, you would certainly--
permission is granted.
    Justice Breyer. I think I will stop, because I have made my 
point.
    [The prepared statement of Justice Breyer follows:]

           Prepared Statement of the Honorable Stephen Breyer










                               __________
    Mr. Cohen. Thank you, sir. You certainly have.
    Our second witness is Associate Justice Antonin Scalia. He 
was nominated as associate justice of the Supreme Court of the 
United States by President Ronald Reagan, assumed that office 
September 26 of 1986. Prior to that appointment, he was in 
private practice in Cleveland, Ohio, and served as professor of 
law at the University of Virginia and the University of Chicago 
and as a visiting professor of law at both Georgetown and 
Stanford.
    He served as chairman of the ABA section of administrative 
law and as conference of section chairman. Justice Scalia 
served as general counsel of the Office of Telecommunications 
Policy, as chairman of the Administrative Conference of the 
United States, and as assistant attorney general for the Office 
of Legal Counsel. He served as a judge on the U.S. Court of 
Appeals for the District of Columbia circuit in 1982.
    Thank you, Justice Scalia, for being here. Please begin 
your testimony.

    TESTIMONY OF THE HONORABLE ANTONIN G. SCALIA, ASSOCIATE 
          JUSTICE, U.S. SUPREME COURT, WASHINGTON, DC

    Justice Scalia. Thank you, Mr. Chairman. I am very glad to 
be here.
    As you noted, Justice Breyer and I were here 6 years ago to 
the day. And to tell you the truth, I was not--well, I was at 
best guardedly optimistic that on that occasion the Committee 
would succeed in reinvigorating or reauthorizing and re-funding 
the Administrative Conference. As I told you then, I thought it 
was a good idea. I am just delighted to see that it has come to 
fruition.
    I am probably happier than most people at the reemergence 
of the Administrative Conference, because I had three offices 
in the executive branch before I went back to teaching. Of 
those three, two of the agencies had been abolished. I had 
begun to feel I was something of a governmental Typhoid Mary, 
and I was afraid the Justice Department would be next, because 
that was my third job.
    So I am delighted to see the conference back. I think it 
was one of the best bargains, results for the buck, that the 
government had during the years while it was in existence. It 
is impossible to tell you or to get you to appreciate how 
expert the private lawyers were, who donated their time to 
considering the studies done by the consultants for the 
conference. And all of that was gratis, of course. The other 
members of the conference were academics and government 
officials, usually general counsels.
    I have in my prepared testimony described to you some of 
the accomplishments of the conference. I am sure there is a lot 
more work to be done, and I share with you the hope that the 
new conference will improve the administrative process for all 
of us.
    I could not be more pleased at the selection of Paul 
Verkuil to be one of my successors. Paul was in fact one of the 
consultants to the old conference, did one of the studies that 
resulted in recommendations by the conference.
    I will just make one other comment, and then do what I 
really came here for, which is to answer whatever questions you 
might have.
    Justice Breyer mentioned, and I think he is quite correct, 
that ordinarily these matters of administrative procedure are 
too technical to attract anybody's attention, and they tend to 
be under the radar. To tell you the truth, I am not sure that 
is all bad. One of the things I worried about with the 
conference was the danger of its being politicized of its 
studies being directed to helping business or not helping 
business, that one interest group or another would come to 
dominate either the conference assembly or the recommendations 
that were presented to the assembly.
    I think that didn't happen during most of its previous 
existence, and I hope that that will continue, because this is 
technical stuff. And there is a good, fair way to do it. It 
should not be done in such a way as to push the substantive 
results in one direction or another.
    And that is all I have by way of introductory remarks. 
Thank you, Mr. Chairman.
    [The prepared statement of Justice Scalia follows:]

           Prepared Statement of the Honorable Antonin Scalia





















                               __________

    Mr. Cohen. You are welcome, Justice Scalia. And we 
appreciate your testimony and for your being here.
    We will now begin the questioning. And I want to remind my 
colleagues that our witnesses are guided by Canon 3 of the Code 
of Conduct for United States Judges, which advises the 
judiciary to avoid making public comments with respect to the 
merits of pending or impending actions. We should endeavor to 
respect those constraints and limit our questions to the 
subject matter of our hearing. Adherence to this guidance will 
promote greater dialogue at this hearing and encourages the 
judiciary to participate in future hearings. No questions 
should be entertained that relate to any particular cases or 
tennis.
    Justice Scalia. Wouldn't answer anyway, Mr. Chairman. 
[Laughter.]
    Mr. Cohen. I will begin by the first volley myself.
    Justice Breyer, you refer to practices that other countries 
used to regulate the regulators. Are there lessons you believe 
ACUS might take from some of these international examples?
    Justice Breyer. It is interesting. One of the things I 
think maybe the judicial system and maybe the administrative 
system could think about is in--sometimes when highly technical 
matters, of which there are more and more--scientific matters, 
for example, does this kind of brake work properly, or does 
this kind of, you know, device have certain amount of polluting 
qualities or danger of product, et cetera--it is awfully 
important to get good science. And there are systems where the 
lists of sciences from the academies, say, in different 
European countries will be made available to judges so that the 
judges can call their own expert from those lists.
    Now, I suspect that probably some agencies are perfectly 
able to do that, and other agencies are not quite as able to do 
that or quite as used to doing that. I am 6 years, at least, 
out of date on this, but one of the things that I have looked 
forward to in the Administrative Conference is when you get 
different groups of staff and agency heads and private lawyers, 
who know something about several agencies, say, in that 
respect, they start talking about it, and they do studies, and 
one will say, ``Well, we couldn't get the right experts on 
this,'' and some will say, ``Well, we could.''
    And what was the difference and how did you get them? And 
then suddenly you see in one of the heads of one of the 
administrations the look which suddenly says the light is 
dawning, which means he has learned something from somebody 
else. That may not be quite the right topic, but a lot of these 
things are international.
    And what your suggestion puts into my mind, but it is more 
important to have in Paul Verkuil's mind, is in today's world 
it isn't such a bad idea to get someone from the EU or to get 
someone from somebody else's--from some of these other 
countries to ask, ``How are you doing this thing--you, who have 
the same kinds of problems--and what are your procedures?'' And 
there is some interchange there internationally, which I would 
be pretty interested in finding out if the Administrative 
Conference can look to those things, too.
    So that is what your question triggers in my mind when you 
ask it.
    Mr. Cohen. Thank you, Justice Breyer. Are there are issues 
that you hope that ACUS will prioritize this year?
    Justice Breyer. That is up to them. And I think that an 
age-old question, and I know you are working on this, and one 
of the problems is there is something now, I think, called 
quasi-final rules or something. Does that ring any bells--a 
quasi-final rule, or what is it called? An interim final rule, 
where there is less procedure.
    And I imagine that one of the things they are going to go 
into is how does that work? And how does the agency--people in 
agencies, in my experience, and I am sure it is still true, 
they might be given a job like set a consumer-oriented labeling 
rule for tires. Well, they don't have anyone in their agency 
who knows what the right rule is, and they have tire companies 
who will tell them, ``Our tires better, because it goes faster 
and doesn't skid on the straightaway.'' And somebody else will 
say, ``No, no. It is the curves that matter.'' ``No, it is the 
rain--rain. It has got to hold during rain.'' And so they get 
lots of conflicting advice.
    Well, in those circumstances there is likely to be no 
absolute answer. There is likely to have to be a weighing of 
different factors. And they will want to get some people in who 
aren't just the staff working on it, nor just the interest 
groups that are talking to the agency. How? When? Under what 
circumstances? How do you prevent this process from going on 
forever? How can we do better and get to the right rule?
    Well, I am sure those problems are there double, and they 
haven't met for 6 years. And so from my outside position on 
this, and just seeing cases that are failures, because that is 
what comes to us as a court--somebody is saying it is a 
failure--I would say that that is a huge area, which they will, 
I suspect, want to go into.
    And then I go back to your first question and say, let us 
look what they are doing on this in the EU. Let us look what 
they are doing on this in other countries. And maybe we will 
all learn something, because that is the bottom line, I think, 
for ACUS. Can we all learn something? And quite often, you do.
    Mr. Cohen. Thank you, sir.
    Justice Scalia, you are former chair and you have now got 
another successor in Chairman Verkuil. As he begins his 
chairmanship, would you be kind enough to offer him some 
suggestions or recommendations on how we should proceed?
    Justice Scalia. Do good and avoid evil---- [Laughter.]
    The only thing for sure.
    Well, of course, the first thing that Chairman Verkuil is 
going to have to do is to identify talented workers, which is 
by and large academics who are interested in the field of 
administrative law and can do out and go out and do the legwork 
that is necessary to any serious study of administrative 
procedures. Fortunately, he is in academia, as most of the 
chairman of the conference have in the past been, and I think 
he will be able to identify them readily enough.
    As to particular subjects, that is--frankly, the hardest 
job of the chairman is to figure out what to study. What is it 
that really needs doing? I agree with Justice Breyer that 
surely one of the areas focused on--it is always focused on--is 
rulemaking, especially since the courts' manner of reviewing 
rulemaking has seemingly changed in recent years.
    I am not as sanguine as Justice Breyer is that we are going 
to learn much from foreign countries. I have no antagonism 
toward studying the best around the world, but--I used to teach 
comparative law--but, frankly, I don't think administrative law 
is an area where we have much to learn as opposed to teach, 
because I think we have probably--and probably you would agree, 
wouldn't you, Justice Breyer?--the most open and efficient 
system of administrative law in the world. I don't know any 
country that--well, many of them don't have a rulemaking, basic 
rulemaking system of the sort that we do.
    Other advice for Chairman Verkuil. No, I think that is 
about it. He has to select good people--I don't know--and good 
members of the conference, of course. It is up to the chairman 
to appoint the lay members of the conference. And that, again, 
requires a good deal of judgment. But I am sure Chairman 
Verkuil knows where the good ones are.
    Mr. Cohen. Thank you, Mr. Justice. As you might have 
noticed, our lighting system is not without the ability to 
fail, and--but I know my 5 minutes are up, and so I will 
recognize the Ranking Member of the Subcommittee, Mr. Franks, 
for his 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And again, thank both of you.
    Justice Scalia, if it is all right, I will begin with you. 
And I want to certainly defer to the restraints that you have, 
and so if I get caught sideways, just ignore me, okay?
    In the Subcommittee's 21st Century Project report, we 
identified several issues for study and potential reform to 
make judicial review more effective. And so I guess I ask you 
what do you think are the top challenges the judiciary 
confronts in providing effective judicial review of agency 
action?
    Justice Scalia. Currently--and there are some ``Law 
Review'' articles that will substantiate this--currently, part 
of their problem is to know when it is that they should and 
when it is that they not defer to the judgment of the agency. 
It is really--the answer to that question is quite vague, and 
maybe that is our fault, but that is the reality. That is the 
biggest problem that the lower Federal courts face--and for 
that matter, our court. I am not sure that I know the answer 
either.
    Mr. Franks. Justice Breyer, do you have anything to----
    Justice Breyer. Well, it could be a problem for you. I 
think it is a very, very big problem. It sounds technical but, 
look, we live today in a world where 300 million Americans want 
a say in what happens. And this is the difficulty. The same is 
the difficulty for every one of us. It is called time. It is 
called time is limited. We have a lot to do, and a lot of these 
decisions require some degree of expertise.
    So people know what they want. They want a cleaner 
environment or they want better health care, whatever those 
things are that they vote for. And they are put at a general 
level. Now, you, then, legislate at a pretty general level. But 
you have to decide to what extent you want the agency to write 
the details. And if you give them too much power, well, then 
you have taken power away from the ordinary American. But if 
you give them too little power, they won't be able to achieve 
those general objectives. You don't tell the Army what hill to 
take.
    Mr. Franks. Yes.
    Justice Breyer. So, ultimately, you are trying to make that 
decision. But you don't focus on it when you write the bill.
    Mr. Franks. Yes.
    Justice Breyer. So we have to interpret these statutes on 
an issue that is inevitably important to you, but you haven't 
told us. And that, I think, as Justice Scalia said, is a very 
difficult problem, because it comes down to the question of how 
much we interfere with the agency.
    Mr. Franks. Mr. Chairman, I don't know about trying to 
coalesce many different voices. That sounds like something 
Members of Congress might be more challenged with than members 
of the court, but that is just a thought.
    Justice Scalia, could ACUS help, do you think, identify the 
most promising legislative actions that could help the 
judiciary in the area that--the question I asked? Do you think 
that is something that they might focus on or have any thoughts 
on?
    Justice Scalia. That is one of the authorized functions of 
the agency is to make recommendations not just to the agencies, 
to the President and to the courts, but to the Congress. And 
some problems in administrative process could not be fixed 
except with the cooperation of Congress.
    Perhaps the most significant change made by the old 
Administrative Conference was eliminating the doctrine of 
sovereign immunity in the review of administrative actions. The 
Justice Department used to have canned briefs, you know--give 
them the sovereign immunity brief, you know. You just pull it 
off the shelf and file it.
    And with the help of Congress, the statute was amended to 
make it very clear that sovereign immunity does not apply to 
challenges to administrative action where you are not seeking 
money damages, but you are seeking to get the agency to do it 
right. So, yes, absolutely.
    Another area that occurs to me that--well, I don't want to 
get sideways with Verkuil. I don't know what Verkuil wants to 
do. But what I would be interested in some statutes Congress 
requires the agency to act by rulemaking. It says the agency 
shall issue rules on this or that. In other areas the Congress 
does not require the agency to act by rule, but authorizes the 
agency to act by rule. And in yet other areas, Congress says 
nothing about it. And so the question is does the agency have 
inherent rulemaking power or not.
    The courts have held that an agency, where it has power to 
act by rule or by adjudication, does not have to act by rule. 
It can just have case-by-case hearings and make its law through 
those case-by-case hearings, just the way the courts do. I 
mean, we don't have rulemaking, but we, in effect, make law by 
case-by-case.
    Now, people have often commented that there are some areas 
where that case-by-case process is not good, and maybe the 
agency ought to be required to act by rule. If there was one 
area where I would look into as to whether Congress should take 
some action, it might be in that group.
    Mr. Franks. Well, I guess my time is up, but can I toss 
this last one out, Mr. Chairman, to Justice Scalia?
    I wanted to see if you had any follow up on Justice 
Breyer's comments related to how clearly Congress writes 
statutes. And I am not trying to draw you into a war here, but 
do you have any thoughts along those lines? I mean, is there 
things you could offer Congress in the clarity of our statutes?
    Justice Scalia. I am much too diplomatic, Congressman, to 
be drawn into that subject.
    Mr. Franks. Yes, sir.
    Well, it sounds like the gentleman may know the difference 
between a judge and a legislator as well, so that is great.
    Thank you, sir. Thank you.
    Thank you both.
    Mr. Cohen. Thank you, Mr. Franks.
    I now recognize the distinguished Chairman of the full 
Committee, the dean of the Judiciary Committee, and my leader, 
John Conyers.
    Mr. Conyers. Thank you, Chairman.
    What I think we have here is some amazing agreement over 
the importance of this conference, a welcome to a new chair. 
And I think that we are going to have to have the time spent in 
which the conference starts acting for us to draw conclusions 
about what we think about it.
    We are all in agreement about its undervalued importance. 
We think it is on the right track. It is re-stimulated. And I 
think from that point on, we will have to see what they 
actually do before we begin to volunteer recommendations in 
terms of process or even substance. And so I think this gets us 
off to a good start.
    Rulemaking is extremely complicated, and for the Congress 
to be relieved of that task and to have it vested in this 
conference is probably a very good thing, because this leads to 
consistency and makes it much easier for us to do the 
substantive legislation.
    Now, is there some area you might think that we might be 
looking at before the new chairman really gets in the saddle?
    Justice Scalia. I would give him a chance to get his 
footing rather than push him in one direction or another. You 
know, he is likely to take a suggestion by Congress as a 
command, and if I were you, I would--he is a good man, and I 
would let him survey the territory and maybe come to you with 
the suggestions, and then you can pick the ones that seem the 
best.
    Mr. Conyers. And after all, Mr. Chairman, we can have him 
come before the Committee from time to time himself.
    Now, there is a subject that I am anxious to raise with 
you, but every member of the staff has recommended strongly 
that I did not raise it, that it fails the minimum, the 
warning, the admonitions of the Subcommittee Chair.
    Justice Scalia. Mr. Chairman, we are both friends of Elena 
Kagan, and I don't---- [Laughter.]
    I don't think we are willing to go beyond that. [Laughter.]
    Mr. Conyers. Well, I am sure you will be relieved to know 
that that was not what I had in mind. [Laughter.]
    But I think that these kinds of discussions between the two 
parts of the Federal system should be encouraged. You know, 
after all, there are two levels to every subject matter. One is 
the substantive part, the matter, the entitled matter that we 
are considering, but there is another psychological area, and 
that area is the personal feelings about human beings that we 
all have toward one another.
    And what that means to me is that if you really understand 
if you really have a disagreement on the substance that is not 
personal and does not go beyond the agreements or the 
differences that exist, we are all in a much better position to 
come to a probably more reasonable conclusion when we are 
operating on that level.
    And all too frequently in the only system I know, a 
democracy like this, it is so easy to move from the substantive 
to the subjective. And once that happens, again, just from my 
experience, that affects the reasoning processes about the 
substantive. And it is for that reason that I applaud the 
Chairman and his ranking colleague for doing what we are doing 
and urge that wherever it is appropriate that it be engaged in 
more.
    I have come to appreciate it at the opening of every one of 
the judicial conferences, the Chairman of both Judiciary 
Committees and their Ranking Members are invited to join the 
chief justice with some of the leaders from the various 
circuits. And it has come to be something that I look forward 
to.
    It is not a long time, but you can talk about whatever you 
want, and the views, of course, of the two Chair and the two 
Ranking Members, their presentations are all unrehearsed and 
are quite different from each other in terms of the subjects 
that they pick as well as their point of view on the subjects 
that they pick.
    And we think that that practice and this practice both make 
it more likely that regardless of whether our agreements or 
disagreements result, that it is done in a more thoughtful way 
and a less subjective way. And for that I am very grateful that 
you have chosen to come back again and again to be with us. 
Thank you for that.
    Thank you, Mr. Chairman.
    Mr. Cohen. Thank you, Mr. Chairman. And while we----
    Justice Scalia. I agree with that.
    Mr. Cohen [continuing]. We can't violate Canon 3, you did 
volunteer, and that opens the door to guessing what Chairman 
Conyers' question was by admitting that you both were friends 
of Ms. Kagan. Would you like to continue on with other thoughts 
of what his question might have been? [Laughter.]
    Justice Breyer. But I thank you for the Chairman's remarks, 
too, and because I couldn't--we live in an institution where we 
disagree about a lot of things, and we also agree about a lot 
of things. And by keeping our discussions always at the 
substantive, professional level and doing our absolute best not 
to make them subjective or personal, we remain good friends, 
and we discover that in a lot of cases, which could go either 
way, you know, it is just much easier to reach agreement. So 
your remarks struck a chord in my mind, for which I thank you.
    Justice Scalia. I agree with that. Somehow the press 
sometimes portrays the Supreme Court as nine scorpions in a 
bottle, you know, all that. That is not what we are at all. We 
are all friends. And how close our friendship is has nothing to 
do with how much we agree on particular substantive issues. And 
the fact that we are friends makes it easier to listen to one 
another on the substantive matters, which is what you are 
saying, Mr. Chairman.
    I wish that we had more contact with other people on the 
Hill. I think the world was much different when this was a 
smaller town, when it was a one-company town and all of the 
social interaction was essentially between members from the 
three branches. My colleague here has a lot of contacts on the 
Hill, having worked there for a long time. He has friends on 
the staff, and I am sure with the members.
    I don't have that advantage and, frankly, I wish that I did 
know more people on the Hill and associate with them not just 
in formal hearings like this, but even socially. And I don't 
know--maybe there ought to be a Take a Congressman to Lunch 
Program. [Laughter.]
    Mr. Cohen. Where? [Laughter.]
    Thank you, sir.
    Mr. Coble from the great state of North Carolina?
    Mr. Coble. Thank you, Mr. Chairman.
    Gentlemen, good to have you both on this side of the Hill. 
Gentlemen, from your past experience with the administrative 
council--Administrative Conference--what are some of the 
important--strike that. What are some of the significant 
difficulties that it faced in identifying and making effective 
recommendations on some of the important areas for 
administrative law?
    And I will be glad to hear from each of you.
    Justice Scalia. Well, I would have a better perspective on 
that. Sometimes you would find an agency that was very 
reluctant to take any advice or guidance--not often, but 
sometimes. And that would make it hard to get our 
recommendations adopted.
    Ordinarily, though, since the general counsel of that 
agency would normally be part of our operation, and since the 
agency would have cooperated with the whole study, that is not 
ordinarily the problem. But that can be one problem.
    And needless to say, getting Congress, if our 
recommendation is one for legislation, you know how easy it is 
to get legislation through, right?
    Mr. Cohen. Lots of things pass the House, sir. [Laughter.]
    Mr. Coble. Justice Breyer, do you want to be heard further?
    Justice Breyer. No, I suspect that the problem on something 
like that is to say it is a problem for many of us, and you 
might have it. It is a question of where can you be effective.
    And, for example, if you have a--there are a large number 
of different subjects that you personally as a legislator, 
wherever you are, might deal with. And you are trying to look 
to see, well, where can we make a difference here? And that 
depends on what the cooperation is from other people. And also 
you would like it to be something significant.
    And so I think the Chairman, who has lots of experience in 
this area, will have to see, well, let us see what those 
agencies--what are they being bothered with? And where do we 
think we can make some progress on this? And then do we find 
the academic?
    You know, I was an academic for a long time, and just being 
there is a strong temptation to just sit in your office. But in 
this area--and it is wonderful for the academic--they will go 
out and talk to people who actually are involved in the process 
and would actually have some experience. And so their work will 
be better.
    You have got to get the right academic, and you have got to 
get to understand from the practitioners what they want and 
need, and you have to understand what is likely in the agency. 
So there we are, that--just anyone who is trying to be 
effective in an area.
    Mr. Coble. Let me put one more question to each one of you. 
One key area of reform the Subcommittee identified in its 21st 
Century Project was electronic rulemaking. And can you all 
identify ways in which Congress both promote a rulemaking and 
better ensure that documents agencies make electronically 
available are redacted to protect all personal information? 
That is a long question, but could you illuminate on that?
    Justice Scalia. Well, ordinarily, the agencies' rulemaking 
process is a written process now. Whether it is written on a 
typewriter or on a word processor or electronically, it doesn't 
seem to me to make a whole lot of difference. Where the new 
electronic age might make a difference is the agency posting 
its proposed regulations so that they will be available to 
everybody readily. That will be a great help.
    But as far as the receipt of recommendations, I, you know, 
I don't know that it would--going to make a whole lot of 
difference whether they do it electronically or by mail. It is 
something the conference ought to look into. What difference 
does the new electronic age make on the agency's rulemaking?
    Justice Breyer. Because I suspect it will. There we were 
pleased at the court, because the Congress provided a year ago 
a small amount of extra money to put our proceedings instantly 
online. So everything goes instantly online, the opinions, 
within a matter of minutes. And the result of that is we got 
about a million hits a day--I mean, huge. And that to me is 
wonderful because, you know, people can instantly find out what 
it is that we have done or are saying, and so forth.
    But if you are on the opposite side, of course, if you can 
have a million or 2 million or 10 million hits, i.e., you could 
have a 10 million comments, and people, if they can, they 
might, and suddenly you have got to figure out how do we 
separate the wheat from the chaff here. And then people can get 
annoyed if they feel they didn't get a good response, and there 
are perhaps millions of people who--you can't answer everybody. 
You answer the kind of comment, not necessarily the individual.
    Well, I think it would be pretty interesting, as Justice 
Scalia says, to find out what is going on, what could go on, 
what do we put online, how do we separate wheat from chaff, and 
so forth.
    Justice Scalia. Well, I mean, that is a good point that 
Justice Breyer makes. Since the agency under normal rulemaking 
procedures must consider all of the comments received, you 
don't want to make it too easy to give comments to the agency. 
I mean, you don't want to sift through a lot of garbage that 
has come through on the Internet. So maybe it is better to 
leave the comment process in writing. But that is something 
that I think the conference ought to look into.
    Mr. Coble. Thank you, gentlemen, for being with us.
    I want to beat the red light so the Chairman won't--you 
won't keelhaul me. Yield back, Mr. Chairman.
    Mr. Cohen. Thank you, Mr. Coble. Never would happen.
    Have either of you all ever considered tweeting or 
twitting?
    Justice Scalia. I don't even know what it is, Mr. Chairman, 
to tell you the truth. [Laughter.]
    I have heard it talked about, but, you know, my wife calls 
me Mr. Clueless. I don't know what you--with tweeting.
    Justice Breyer. Well, I had no personal experience with 
that. I didn't know how it worked. And then, remember when they 
had disturbance in Iran?
    Mr. Cohen. That is true.
    Justice Breyer. Well, for my son said, ``Go look at this.'' 
And, oh, my goodness. I mean, there were some twitters, they 
called them. But there were people there with photographs as it 
went on, and I sat there for 2 hours absolutely hypnotized. And 
I thought, ``My goodness, this is now for better or for 
worse.'' I think maybe in many respects for better--in that 
instance, certainly.
    It is not the same world, and it is instant. And people 
react instantly. And there we are. I will just say there is 
quite a difference there, and it is not something that is going 
to go away.
    Mr. Cohen. I would now like to recognize a former district 
attorney general and a long-term serving Member of this 
Committee, a man who has been hypnotized on several occasions 
by many different current events and national events, and a 
lame duck, so you never know what he will say, Honorable Bill 
Delahunt.
    Mr. Delahunt. I, too, shall be diplomatic, Mr. Chairman. I 
can't really add anything to what has already been said other 
than to extend a note to the both of you of gratitude for 
providing impetus, if you will, for the resurrection of the 
conference. I think you both deserve unrestrained praise for 
again bringing back to life what will be a useful tool. And 
this will be part of your collective legacy.
    And I guess my one observation would be that we hear much 
about accountability and transparency in government, and 
government being out of control. This is a very significant 
vehicle to ensure accountability, another check that, if you 
will, is under the radar screen. Even with your presence here, 
one doesn't see a mass of cameras here today. There might be 
one or two members of the press, but this kind of--the 
availability of the conference, really, I consider something of 
immense value in terms of how government functions.
    But I would hope, with the advent of the new leadership, 
and we all welcome the new director here, there is an 
understanding that it is important to have a profile. Maybe I 
can make this into a question to see whether you concur with 
this judgment. But we ought to be able to, you know, 
demonstrate to the American people that this is--I think maybe 
it was you, Justice Scalia, that said this is a good bargain. 
This is a real good investment.
    And maybe within the conference itself there is an 
opportunity to establish in very real and practical terms the 
cost savings that are effected by the work of the conference 
over an extended period of time. Do you have a comment?
    Justice Scalia. Yes. You know, a good way to do it would be 
to have the private lawyers keep track of the hours that they 
expend in committee meetings and in the assembly, and then to 
charge 500 bucks an hour or whatever their normal rate is, and 
add it up and see what it comes to at the end of the year. You 
will find that you are getting an awful lot of very----
    Mr. Delahunt. I am not even talking about those kind of 
savings. What I am talking about is the benefit of the 
recommendations----
    Justice Scalia. That is a little----
    Mr. Delahunt [continuing]. In terms of the functioning of 
government.
    Justice Scalia. That is a little harder to quantify. I 
mean, that is why most of this stuff is under the radar. It is 
hard to quantify most of it.
    Mr. Delahunt. Really?
    Justice Breyer?
    I mean, I would encourage it, because I think that, you 
know, much of what we do here, really, its importance and 
significance goes entirely unnoticed. And this would be an 
opportunity to say to the American people government is 
working. It can function in an efficient, effective way.
    And here's the bottom line. Now, maybe we have to guess 
somewhat. Maybe it has to be a range, but I see it as a small 
step in terms of restoring what clearly is a--I don't want to 
become, you know, I don't want to indulge in hyperbole here--
but restoring some confidence in government, that it can 
function and it can work, as far as the American people are 
concerned.
    Yes?
    Justice Breyer. Congressman, I am glad that we are hearing 
you ask that. It might be on some things. For example, suppose 
you change some of these processes so the bottom line, which it 
would be a rule coming out, comes out more quickly. Well, there 
you can make an estimate with that, because a longer time takes 
a lot of money. And then you could see there's some measurement 
of satisfaction.
    And there might be ways that Sally Katzen--I don't want to 
put her on the spot, but she has been over running OIRA. And in 
OIRA they have ways in OIRA of measuring that they save the 
country X billion dollars, for example. And some of what the 
Administrative Conference, but not all, would lend itself to 
that.
    And then how many people actually file court cases as a 
result of the rule? If, on balance, fewer people do, because 
there is greater satisfaction, that might be quantifiable, too. 
So I suspect with some of the things that there will be some 
methods of quantifying some of them as minimal savings, and 
maybe more. And I think that might help.
    Justice Scalia. The conference publishes an annual report--
I am sure it will continue to do that--which tries to set forth 
the most important recommendations it has come up with in the 
previous year and also the most important accomplishments of 
prior recommendations from the previous year. And I am sure 
that will continue, but I am also sure that it will not make 
the front page of the Washington Post.
    Mr. Delahunt. Right.
    Justice Scalia. Most of this stuff is very incremental. It 
is very technical. It is hard to grab the public's attention 
with it.
    Mr. Delahunt. Yes. Thank you, gentlemen.
    Mr. Cohen. Thank you, Mr. Delahunt.
    I now recognize the gentleman from Iowa, Mr. King.
    Mr. King. Thank you, Mr. Chairman.
    Thank you, Justices, for your testimony here and your 
engaging response to the questions that have been offered by 
the members of this panel. I happened to notice that there were 
13 people that came through the gallery here that had been in 
my office within the last 2 hours. They are quite interested in 
the dialogue that is taking place here today, and as am I.
    And I am wondering--this is kind of a personal curiosity--
how broad the comments might come from the conference on when 
we are looking at comments that would go in on the executive 
branch of government, certainly, and the rulemaking process. 
Would those comments also have the view from the judicial 
branch and of the legislative branch?
    Justice Scalia. I am sure that we never--well, I do not 
recall during my tenure as chairman, nor am I aware that during 
any other chairman's tenure, views were requested from the 
courts. I am not aware that that ever happened. And I am not 
sure--I am unaware of soliciting views from the Congress 
either. When Congress had views, I am sure it made them known, 
but I don't think we have solicited them.
    Mr. King. Thank you.
    Justice Breyer?
    Justice Breyer. In the Administrative Conference itself, 
which is really not the rulemaking body, but it is considering 
the rulemaking procedures, for example, of other agencies, I 
was the judicial liaison. So there there was a method of 
finding out what judges thought of the processes that they were 
considering.
    And also from time to time there were people from Congress, 
it is my recollection. And I know that Congress has often 
provided a comment on rulemaking by different agencies, it used 
to be, whether it was EPA or other things. It is rare that the 
judiciary will do that.
    Mr. King. Well, here is what brings about my curiosity and 
within this context that as rules are proposed by the agencies, 
if the conference is taking a look at those rules before they 
have the force and effect of law, they--and they are perhaps 
making a recommendation as to looking at it from all three 
branches of government, perhaps an evaluation of where 
constitutional problems might arise, or in the legislative 
branch--now, let me say that that would be the judicial 
branch--the executive branch on whether and how the executive 
branch might administer these rules, and maybe recommendations 
to the legislative branch as well as far as the input that 
might come from the public on the policy side.
    I bring all of these up because I watch us pass legislation 
here that turns into rules that have the force and effect of 
law, and once it leaves the Congress and goes to the 
President's desk, it is completely out of our control, and yet 
our constituents have to live with the consequences.
    And so I am looking for a way that--I have in the past 
introduced legislation, and I am currently an original co-
sponsor of legislation that the lead sponsor on it is 
Congressman Davis of Kentucky, H.R. 3765, which the legislation 
that I introduced requires all the rules to come before 
Congress before they have--and they can be voted in block or 
separated out and amended, but before they have the force and 
effect, so that Congress could vote them up or down.
    And it seems to me that if we could pass the legislation of 
that type in this Congress, that would allow all of us with our 
306 million constituents to have input sorted through each of 
our Members. And then that kind of input could go to the 
conference to be evaluated and perhaps be coupled with a 
recommendation before we would vote on such rules before the 
Congress.
    And I see Justice Scalia with an answer to that idea.
    Justice Scalia. Please, please don't do it, Congressman. 
[Laughter.]
    We didn't, and I don't think we should, get into the 
substance of rules. I think it would be the kiss of death for 
the Congress to have it review the substance of agency 
rulemaking.
    The only thing we look to, and that is why it is so--what 
should I say--so unpopular and dull and under the radar, all we 
look to are the procedures that the agencies use. They may come 
out with real garbage, but that is none of our business. That 
is your business, I understand, but it is not the conference's.
    And I think if you tried to make it the conference's, it 
would alter the character of the organization enormously. I 
think it would ultimately be ineffective, because it would 
inevitably become politicized, the substance, you know, getting 
into what people favor or don't favor, whereas procedures are 
pretty much, you know, people--but whatever procedures are 
passed, efficient, fair, you can get people to agree on those 
things. But when you get into the substance, you are going to 
politicize. We have never done that in the past, and I hope 
that that that won't happen.
    Mr. King. Justice Breyer?
    Justice Breyer. It is a very big topic with a history. And 
I would bet if you go back a hundred years, you will find 
people with the same concern and a hundred years from now, 
because your concern is, well, we have to delegate a lot of 
authority to the President or to the agency, and then we really 
don't have much of a check on how they exercise it.
    And one of the ways of solving that for a while was 
something called the legislative veto. And there was a two-
House veto, and there was no one-House veto, and then in a case 
called Chadha, which was decided before I was on the court, the 
court said that that is unconstitutional. I didn't do it, but 
the court----
    Justice Scalia. I did. And I wrote one of the briefs in the 
case.
    Justice Breyer. Yes.
    Justice Scalia. Entirely correct.
    Justice Breyer. I am sure it was. I wasn't there, so I 
don't----
    And then are there ways of replicating procedures like 
that? Well, that is a big question and difficult to do, and so 
I will leave you with the problem. But I will note, yes, of 
course, it is a problem.
    And by the way, interestingly enough, there have been 
complaints in a famous article written by Lloyd Cutler years 
ago that just as you are in the position of, well, we give this 
power to this agency and then we don't know what they will do 
with it and we have no check, so is the President, said Lloyd 
Cutler, and because he actually doesn't run the agencies, and 
he has limited time, and how does he bring them into a check?
    Hence, OIRA. Hence, OIRA, in an effort to do this, and this 
is bipartisan. They have different names under different 
Presidents, but it is the same effort. And now you are trying 
to figure out a way how to do that in Congress, and you do it 
some with hearings, you do it some with budgets and so forth. 
But so I won't say don't do it----
    Mr. King. But I----
    Justice Scalia. I would say yes----
    Justice Breyer. You know, good luck, and it is important--
--
    Mr. King. I mean, my comment was really in an advisory 
capacity on this, and I think in the end we could agree that 
this default needs to go back to the voice of the people as 
heard by the Members of Congress, and it is our responsibility 
in the end to take care of that here at----
    Justice Breyer. Because what I had said--it is a very 
interesting topic for me, because I--what I said before was not 
a criticism of Congress. But I don't know how I would write a 
statute which says we want to give the agency just this much 
power, and we want the courts to dive in just this much. Well, 
what is the ``this much?'' And how do you write that? And that 
is why it is so difficult.
    So it is a huge problem, and it is not as if you can't make 
any progress. Maybe you can. But I could just make the trite 
observation that it is no less of a problem today than it was 6 
years ago or 60 years ago. And that is what we are trying to 
find out.
    Mr. King. Well, in conclusion, Mr. Chairman, I would just 
comment that the Endangered Species Act and the Clean Water Act 
mean something entirely different today than they did when they 
were passed, and that is one way to illuminate this problem 
that we have.
    Thank you, Justices. I appreciate it.
    And I yield back.
    Mr. King. Thank you, Mr. King.
    And I want to thank each of the members of the panel, in 
particular the justices on the panel, for their time, their 
interest in the subject matter, their testimony today.
    And we are going to recess this hearing, because we have 
votes. We will come back.
    The justices are, within the powers that I have, dismissed. 
And I want to thank you for your testimony.
    And, Justice Breyer, I want to thank--you give me a lot of 
new ideas on how to buy my new tires. Thank you. Thank you very 
much.
    Justice Scalia. Thank you, Mr. Chairman. Enjoyed being 
here.
    [Recess.]
    Mr. Cohen. [Presiding.] This panel is now reconvened and 
open for business. Thank you for participating today. And we 
have the same instructions that we had previously--red, blue, 
yellow, green lights. Hopefully, they work.
    Our first witness is Mr. Paul Verkuil, who has had much 
recommendations and advice today from distinguished scholars, 
confirmed by the Senate as chairman of the administrative 
office--Administrative Conference of the United States, aka 
ACUS, sworn in by the Vice President April 6, 2010, served as 
president of the College of William and Mary, where Rip Scherer 
went to school and might have coached as well, dean of Tulane, 
where Richie Petitbon went to school and may have coached as 
well, and Cardozo Law Schools, where Bike Haas went to school, 
the acting dean of the University of Miami Law School, where 
George Meyer went to school, and CEO of the American Automobile 
Association.
    Legal activities include appointment as special master by 
the U.S. Supreme Court in the original jurisdiction case of New 
Jersey versus New York, not in the NBA, and appointment as 
special master by the Fifth Circuit in U.S. versus Louisiana 
higher education desegregation case.
    As senior counsel to Boies, Schiller & Flexner, Mr. Verkuil 
oversaw the firm's pro bono program of anti-trust and corporate 
governance matters, published over 60 articles on 
administrative law and regulation topics, chair of the 
administrative law and regulatory practice section of the ABA, 
and a consultant to and member of the Administrative Conference 
of the United States, ACUS.
    Thank you, Mr. Verkuil, for your participation. And will 
you proceed with your testimony, sir?
    You have to turn yourself on there. There you go.

    TESTIMONY OF PAUL R. VERKUIL, CHAIRMAN, ADMINISTRATIVE 
                CONFERENCE OF THE UNITED STATES

    Mr. Verkuil. I am sorry. Can you hear me?
    Mr. Cohen. Yes, sir.
    Mr. Verkuil. Am I on? Okay, good.
    I am sorry Justice Scalia has left, because I wanted to 
assure him----
    Mr. Cohen. We can call him back.
    Mr. Verkuil. No, no, that is all right.
    Mr. Cohen. Somebody issue a subpoena quickly. [Laughter.]
    Mr. Verkuil. I just wanted to assure him and assure you, 
too, that I am definitely here to do good and avoid evil.
    Mr. Cohen. Good.
    Mr. Verkuil. As you can tell.
    Mr. Cohen. We are all, you now, waiting to hear.
    Mr. Verkuil. I know this was a question to be answered 
first.
    As you can tell, we are an agency with many friends in 
government, on the Hill and on both sides of the aisle. It 
tempts me to recall the words of Daniel Webster, who told the 
Supreme Court in the Dartmouth College case that we are a small 
college, but there are those who love us. Well, we are a small 
agency, but we have many friends. We are big in friends. And 
this is so for a reason.
    ACUS represents an ideal in government administration, a 
thoughtful balance politically and ideologically, and 
consensus-driven. It is no exaggeration to say that the best of 
our recommendations contain a kind of moral as well as logical 
force. They are followed or adopted because they are the 
product of deliberation and are persuasive. They are not ukases 
issued from above.
    It is my hope that during my time as chair these qualities 
will distinguish each of our recommendations and all of the 
work of the conference, whether it be colloquia, research 
reports or informal advice. I am also sensitive to the charge 
that we not become too esoteric, too law professor-like, if you 
will, in our work. We need to think without being a think tank. 
We need also to do. So let us call it a think and do tank.
    Informal advice on short notice should be one of our 
strengths. Solving sticky, small procedural problems quickly 
should be as important as deliberating carefully over large 
questions of the administrative process.
    My written testimony sets out a potential list of topics, 
some big, some small, but rather than dwell on these in my 
short time, let me tell you what I have in mind and have been 
doing to get us up and running. Currently, I am the only 
employee of ACUS, but I have been assisted by some effective 
consultants and a former conference senior staff attorney, who 
has been detailed from GSA. I have undertaken the following 
activities to get it started again.
    First, prospective members of the council are in the final 
stages of approval and will be announced shortly by the White 
House. OMB has reestablished an account for the conference from 
which appropriations can be drawn, and we have established the 
budget mechanisms and authorities necessary to commence 
operations.
    Steps have been taken to reclaim old conference files from 
the national archives and from unlikely places like law school 
libraries and even basements of former employees. In fact, I 
have my eyes out everywhere for old ACUS documents and 
memorabilia, one of which I can show you. We found the original 
seal in, I must say, David Pritzker's basement.
    While I was in Thomasina Rogers' office last week. She is 
the last chair of the conference and is now chair of the 
Occupational Safety and Health Review Commission, and I spied 
some old green conference volumes on her shelf, which I hope to 
recover, or at least borrow. And so it goes.
    Mr. Cohen. Have you been to Justice Scalia's office?
    Mr. Verkuil. No. I have, but I haven't looked on the 
shelves. I am going to do that. Thank you for the tip.
    We have been using temporary space made available by the 
Federal Trade Commission under an interagency agreement until 
our permanent space is available sometime in July, and we are 
in the process of getting our appointments through OPM, as 
required.
    We started the process of filling up the membership by 
determining the independent regulatory agencies that are 
statutorily entitled to membership, consulting with the White 
House on the departments and agencies that require presidential 
designations, identifying departmental subagencies that might 
deserve their own members, and beginning the process of 
identifying a diverse group of nongovernmental members and 
liaison representatives, whose appointment will be subject to 
approval by the council.
    I have met with GSA to discuss the requirements of the 
Federal Advisory Committee Act as they apply to the conference. 
We are working together to finalize a charter, which under FACA 
must be filed before any meetings can take place. A copy of 
that charter will also be filed with the standing committees of 
the Senate and House committees with jurisdiction over ACUS.
    I met with DOJ's Office of Legal Counsel to request review 
of a prior OLC opinion concerning the application of the 
Emoluments Clause of the Constitution to the office, to our 
members and to our council membership. I met with the U.S. 
Government Ethics Office to review, update and simplify our 
prior procedures for monitoring potential conflicts of 
interest, particularly among nongovernmental members of the 
conference. And I have been reviewing and considering updates 
to conference bylaws to conform with changes in law and 
reestablish our committee structure.
    I am working to reconnect with Federal agencies, the bar, 
public interest groups, the academic community and, of course, 
with the Hill and with this Committee to solicit input on 
issues that might make the most sense to address first. In 
order to gain momentum, I have met with several academic 
researchers to undertake specific studies in some of the areas 
mentioned in my written testimony.
    I am engaged in planning for a Web site that will be easily 
accessible to the public and the agencies alike and help us 
provide a useful forum to discuss and propose best practices. 
Finally, I have submitted our fiscal year 2011 budget to the 
House Appropriations Committee through OMB.
    I can tell you, Mr. Chairman, that we are very happy to be 
in business. I am very proud to be part of the agency that you 
have permitted to come back to life, and I want you to know 
that I will work as hard as I can to make this Subcommittee and 
this Committee proud that you have been the driving force to 
reestablish the Administrative Conference. Thank you very much.
    [The prepared statement of Mr. Verkuil follows:]

                 Prepared Statement of Paul R. Verkuil



























                               __________

    Mr. Cohen. Thank you. You make me feel like Dr. 
Frankenstein. [Laughter.]
    Something like that. Thank you for your testimony, Mr. 
Verkuil.
    Our second witness is Ms. Sally Katzen. And Justice Breyer 
referred to her at least three times in his testimony. We 
noticed that, and I think Mary Ann Akers will comment on that 
in her gossip column tomorrow.
    Ms. Katzen has testified before Congress over 65 times on a 
broad range of Federal Government activity and has served on 
panels at the National Academy of Science. Her career in the 
Federal Government includes 8 years in the Clinton 
administration as deputy director for management of the OMB, as 
deputy assistant for the President for economic policy and 
deputy directory of the National Economic Council and is 
administrator of the Office of Information and Regulatory 
Affairs in OMB, where she was the senior advisor to the 
President on regulatory policy and process.
    Ms. Katzen was the first female partner at Wilmer Cutler & 
Pickering and is a well-respected professor, having taught at 
GW, Michigan, George Mason, Pennsylvania and Georgetown law 
schools, in addition to Smith College, Johns Hopkins University 
and the Michigan and Washington program.
    Welcome back.

TESTIMONY OF SALLY KATZEN, EXECUTIVE MANAGING DIRECTOR, PODESTA 
                             GROUP

    Ms. Katzen. Thank you very much, sir.
    Chairman Cohen, Ranking Member Franks, if I may echo 
Justice Breyer, thank you so much for having a hearing on this 
subject. It sends a very strong message that will resonate 
throughout the town.
    Now, the witnesses today--and you have assembled a most 
impressive group of ACUS supporters--have submitted written 
testimony about the importance of ACUS, the significant 
substantive contributions it made in its first incarnation, and 
an array of contributions it can make in the future. And rather 
than go down that now well-worn path, I thought I would try to 
take a stab at the question of what you can do now, what 
Congress can do to help advance the ball.
    And this Committee, as everyone has recognized, has been 
very instrumental in reauthorizing ACUS and in prevailing upon 
your colleagues for the appropriations. And I emphasize the 
latter, because it was because of the lack of appropriations in 
1995 that ACUS was closed.
    I want to take just 1 minute to just talk about the 
question that invariably comes up when you are talking about 
funding using taxpayer money for an institution or an entity 
like ACUS. And they always say, ``Why does ACUS have to exist? 
Isn't there some other entity, if not in the Federal 
Government, then in the private sector?''
    And in my written testimony I go on at some length about 
the various things I have done over the last four decades in 
the field of administrative law in the private sector, in the 
public sector and in the academy. And so I say with some 
confidence categorically that no other entity can do what ACUS 
can do. And I am not saying that no one can't do it as well or 
as efficiently. I am saying no one can do it, period. And so to 
keep ACUS alive and well is really critically important.
    And I know you are working on reauthorization. I would urge 
the Committee to think about permanent reauthorization so that 
you can set an example and send again a message for the 
appropriators that this is a critical thing. We have had a 15-
year hiatus, and while Chairman Verkuil has talked about the 
steps he has taken, you hear how difficult it is to start out 
even an agency that has all the files and the seal in place. 
And I would just urge that we do not have to go through that 
again by having Congress send the signal that this is here to 
stay.
    I also would encourage you to send a message to the White 
House. Chairman Verkuil said that they are going to announce 
the council. Great. Let us get on with it and be able to have 
the chair and the council convene an assembly so that the 
important work can be done.
    I talked about all the different institutions in my written 
testimony. I would be happy to answer any questions, but again, 
I want to just thank you so much for doing what you have done.
    [The prepared statement of Ms. Katzen follows:]

                   Prepared Statement of Sally Katzen














                               __________
    Mr. Cohen. You are welcome, Ms. Katzen. I appreciate your 
testimony.
    Our third witness is Professor Jeffrey Lubbers. Professor 
Lubbers is a professor of practice in administrative law and 
active in the WCL's law and government program. He has 
expertise in administrative law, government structure and 
procedures, and regulatory policy and procedures, among other 
things, I am sure.
    From 1982 to 1995, Professor Lubbers was the research 
director of the Administrative Conference of the United States. 
He has published two books on agency rulemaking and 
administrative procedure in addition to teaching. Professor 
Lubbers is also administrator of law consultant, whose clients 
include numerous Federal agencies, law firms, public interest 
groups and international organizations.
    Professor Lubbers, will you proceed with your testimony? I 
hope I got that right the last three times.

   TESTIMONY OF JEFFREY S. LUBBERS, PROFESSOR OF PRACTICE IN 
 ADMINISTRATIVE LAW, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF 
                              LAW

    Mr. Lubbers. Yes, you did.
    Thank you very much, Mr. Chairman and Mr. Franks. It is a 
great pleasure for me to be here today.
    As you said, I was an attorney at the Administrative 
Conference, actually, from 1975 to 1995. I was the research 
director for the last 13 years of that period, so I am really 
thrilled to be here today to mark the rebirth of the 
Administrative Conference, which is happening primarily because 
of the Subcommittee's steadfast bipartisan support for 
reauthorizing the conference.
    Now, needless to say, it is very unusual for an agency to 
go on a 14-year hiatus. And this presents some interesting 
challenges to get it going again. But, fortunately, the 
Administrative Conference Act as amended still offers an 
excellent blueprint and foundation for the conference's work, 
and I am confident that Chairman Verkuil will provide the 
leadership necessary to meet those challenges. And I would say 
that even if he hadn't asked me to be a consultant in helping 
him to begin this effort.
    Now, of course, today's problems and the landscape of 
today's government are somewhat different from those of 1995, 
but the basic tensions in our administrative procedure between 
fairness and efficiency, discretion and accountability, 
formality and informality, and openness and confidentiality 
continue to exist. And it is a big part of ACUS's mission to 
help find the right balance between those poles in various 
contexts.
    I thought I would say a few words about how the Office of 
the Chairman and its small staff functioned in practice. Of 
course, we recognize that the full assembly members, including 
savvy experts like Sally Katzen, was the great resource of the 
conference.
    The debates in ACUS meetings were almost always civil. It 
was striking how interest group lawyers, who are normally 
strong opponents in the world of litigation, lobbying and 
politics, could come together in a spirit of cooperation to 
seek consensus on process. I firmly believe that the 
connections forged in ACUS meetings helped increase civil 
discourse and reduce the level of partisanship in legal 
Washington. And it can do so again.
    Our role in the Office of the Chairman, which had never 
more than 20 employees, was to serve both the chairman and the 
membership and to undertake all the different operational 
responsibilities that come with being an agency.
    We were very fortunate to have a dedicated and stable group 
of staff attorneys during my tenure at ACUS. They had to do a 
little bit of everything--take minutes at conference meetings, 
help write Office of the Chairman sourcebooks, critique 
consultants' reports, wordsmith draft recommendations, interact 
with high-level and high-powered members of the conference, 
work on implementation of ACUS's body of recommendations, and 
carry out special statutory assignments under the 
Administrative Dispute Resolution Act, Equal Access to Justice 
Act, and several other statutes.
    All of ACUS's employees, except for the chairman and his 
confidential assistant, were career civil servants, so we had 
to be, and I think we were, scrupulously nonpartisan, and we 
supported the chairman's agenda regardless of his or her 
political ideology.
    I thought I might mention a few of the biggest operational 
challenges we had, from my point of view. One was that the 
large body of ACUS recommendations issued over the years needed 
appropriate follow-up. These recommendations were not issued as 
helium balloons let loose in the wild blue yonder. They were 
issued to persuade recipients--the agencies, Congress and the 
President--to take the actions suggested.
    In that regard ACUS's lack of enforcement power was both a 
strength and a weakness. The fact that ACUS is purely advisory 
meant that agency members in the assembly could participate in 
deliberations frankly and without concern that the group's 
conclusions were binding on them. And this willingness was the 
key to obtaining consensus.
    On the other hand, because ACUS cannot order anyone to do 
anything, it was up to the Office of the Chairman to do 
everything it could to cajole and advocate for the 
recommendations. This meant that we had to not only monitor a 
lot of developments, but we also had to prioritize and 
concentrate on the ones that were either the most pressing or 
had the best chance of being adopted.
    It was difficult to measure success in this area. If 
Congress enacted the recommended legislation, which does happen 
fairly often, we could check that one off. But sometimes only a 
part of the recommendation would be enacted, or if the 
recommendation were addressed to the agencies, some might take 
the suggested action and some might not. We felt the need to 
measure our success in this area, and we did keep a running 
tally, but it was a challenge.
    In terms of new research, we didn't just want studies that 
could be done in a law library. We wanted what former Chairman 
Robert Anthony, who is in our audience today, called eyeball 
and shoe leather research. This meant that we wanted our 
researchers to interview agency and congressional staff and 
affected stakeholders. One of the Office of the Chairman's 
major attributes was that it could facilitate these interviews.
    Another challenge was to find the funds to undertake larger 
and more empirically-based studies. Occasionally, Congress 
specifically asked ACUS to undertake projects that required 
rather large empirical inquiries without providing additional 
funding. This meant that other research had to take a back seat 
to those projects.
    On the other hand, sometimes Congress did include a 
supplemental appropriation for a project. Often agencies would 
ask us to undertake projects, and sometimes we had to ask for 
funds to do them. Thankfully, ACUS's statute made it possible 
to accept these contributions, but doing so meant that we had 
to make doubly sure that these projects could go forward 
without undue influence from the funding sources.
    I believe we were successful in doing that, but in those 
instances I was concerned about appearances and would have much 
preferred it if we could have counted on having enough of our 
own funds for research.
    I firmly believe that ACUS is equipped to do research 
projects at a much lower cost than other entities, so I hope 
that as ACUS moves forward, this Committee will continue to 
support funding that allows ACUS to really take on the 
important administrative process issues of today, some of which 
you might want to request of ACUS, because doing so will 
produce even bigger savings and payoffs for the government in 
the future.
    In closing, let me say that I plan to do everything I can 
to help ACUS resume its essential activities. I, too, have a 
lot of old files in my basement, and had them for 14 years, and 
I am looking forward to returning them to their rightful place 
when the new office is up and running. So thank you very much 
for your support over these years.
    [The prepared statement of Mr. Lubbers follows:]

                Prepared Statement of Jeffrey S. Lubbers













                               __________

    Mr. Cohen. Thank you, Professor, and appreciate your 
returning the materials.
    Our final witness is Dr. Curtis Copeland, a specialist in 
American national government at CRS, Congressional Research 
Services. Dr. Copeland's expertise is Federal rulemaking and 
regulatory policy. He has testified numerous times before the 
Subcommittee. Prior to joining CRS, he held a variety of 
positions in the Government Accountability Office during his 23 
years there.
    Dr. Copeland, welcome. And will you begin your testimony?

TESTIMONY OF CURTIS W. COPELAND, Ph.D., SPECIALIST IN AMERICAN 
      NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE

    Mr. Copeland. Mr. Chairman, thank you very much.
    Mr. Franks, thank you for inviting me here today.
    As I described in detail in my written statement, dozens of 
suggestions have been made over the last 6 years particularly 
as to what issues ACUS could address, now that it is up and 
running. However, because the agency's authorization for 
appropriation expires in less than 17 months, some have 
suggested that ACUS focus on one or two short-term projects 
that could quickly prove its value to Congress and the American 
people.
    Several observers have noted, and several did today, that 
previous ACUS recommendations have saved the government much 
more than their appropriation. There seems to be widespread 
agreement that this trend could continue into the future.
    For example, 6 years ago today, Justice Breyer said that 
implementation of ACUS recommendations to shorten the 
rulemaking process could save millions or even billions of 
dollars. Based on recent estimates of Federal expenditures on 
regulatory activities, if ACUS could make rulemaking agencies 
even one-tenth of 1 percent more efficient, the savings would 
be nearly $60 million a year, about 40 times the $1.5 million 
that ACUS has been appropriated for fiscal year 2010.
    In August 2009, the ABA Section on Administrative Law and 
Regulatory Practice recommended two projects for ACUS that it 
said could produce substantial savings in the near as well as 
the long term. The first was that ACUS sponsor a best practices 
forum at which agencies could share information and obtain 
advice from experts, thereby preventing them from having to 
reinvent the wheel each time they changed policies. Such a 
forum could help the diffusion of innovative practices, improve 
results, and potentially provide substantial savings.
    The ad law section also recommended that ACUS review what 
it termed the plethora of unimplemented administrative law 
recommendations by GAO, the ABA and others during the 14 years 
since ACUS was discontinued in 1996. By leading certain 
recommendations to implementation, the section said ACUS could 
potentially improve government operations and could save the 
government ``tens of millions of dollars each year.''
    ACUS could also demonstrate its value by leading 
improvements on the revenue side of the ledger. For example, in 
2003 GAO discovered that changes made to the Civil Penalties 
Inflation Adjustment Act of 1996 sometimes actually prevented 
agencies from adjusting their penalties for inflation. As a 
result the penalties that Congress set were losing their 
deterrent value, and the government was losing revenues.
    In 2007, GAO said that if just civil tax penalties had kept 
pace with inflation, IRS collections from 2000 to 2005 would 
have increased by $61 million. ACUS could provide a renewed 
basis for congressional consideration of this issue, 
potentially leading to annual revenue increases that are many 
times the conference's appropriation.
    ACUS could also prove its value to Congress and the public 
in other ways. For example, the recently enacted health care 
legislation has more than 40 provisions requiring or permitting 
agencies to issue implementing regulations. ACUS could guide 
the agencies in this process, serving as a central repository 
of expertise on such issues as the Administrative Procedure 
Act, the Paperwork Reduction Act and a host of other regulatory 
statutes and executive orders.
    The health care legislation also establishes dozens of new 
government organizations and advisory bodies. ACUS could offer 
valuable advice to agencies on the establishment of these 
entities, particularly with regard to the applicability of 
certain general management laws like the Freedom of Information 
Act, the Federal Advisory Committee Act, and so forth.
    In short, ACUS could quickly prove its value in several 
ways, potentially making it easier for Congress to justify 
future conference authorizations or a permanent authorization 
and appropriation.
    Mr. Chairman, thank you very much, and I appreciate it. And 
I will answer any questions that you have for me.
    [The prepared statement of Mr. Copeland follows:]

                Prepared Statement of Curtis W. Copeland


























                               __________
    Mr. Cohen. Thank you, Dr. Copeland. I appreciate your 
testimony, as the other folks'.
    We will now go into a questioning period, and I will 
recognize myself for questions.
    The first thing is, Dr. Verkuil--Verkuil, excuse me--what 
factors do you believe led to ACUS's demise? And how do you 
plan to address or avoid these issues in this newly reborn 
ACUS?
    Mr. Verkuil [continuing]. Combination of events at the 
time. The idea of saving government money by reducing the 
number of agencies ironically fell upon maybe the one agency 
that was making the government money, but we were symbolic of a 
mood, I think, that perhaps is what led to our demise then.
    And, I think, almost instantly on both sides of the aisle, 
everyone reflected on this and said, ``This doesn't make any 
sense,'' and so the fight to come back, while it has taken some 
years, was begun and persisted and now has achieved success.
    All I can say to you, Mr. Chairman, is that I am going to 
try to make sure that we do effective work, and do it well and 
carefully, and communicate with all the constituencies that we 
have so that we will be in a position to flourish and not be in 
jeopardy any longer. And, of course, it is if we want to make 
sure that we have a permanent appropriation and that you will 
take advantage of us, really as an agency of government that 
wants to help improve the quality and the efficiency and the 
fairness of government process.
    Mr. Cohen. You were a victim, I guess, of the Contract on 
America?
    Mr. Verkuil. Well, you know, the contract--that was the 
time of the Contract with America, and it did have important 
points to make, and I think it was not just that. It was the 
whole reinventing government movement came along, and we 
somehow got in the midst of it. And I don't remember exactly 
why. I wasn't there.
    Mr. Cohen. Does anybody else have any ideas on why ACUS 
demised--the demise of ACUS?
    Yes, Ms. Katzen?
    Ms. Katzen. I was the acting chair at the time of the end 
of ACUS, and I think it was just a perfect storm. It was the 
Contract on America had said we had to have a smaller 
government, and that was a rallying cry that was taken up. And 
unfortunately, the only two agencies that were eliminated, one 
of them was ACUS. But I think the fault, dear Brutus, lay with 
us as well in that there was not a lot of communication with 
the Hill as to what we did or why we did it.
    You heard Justice Scalia say earlier that these kinds of 
issues are below the radar. That is good in one sense, but it 
means that they can be misunderstood. The importance of them 
cannot be appreciated, because no we knew what we were doing, 
and when we realized that this was happening, and I, among 
others, started running around the Hill, saying, ``Wait. Wait a 
second. This is a good organization. This is not what you want 
to do,'' people had no clue what the Administrative Conference 
of the United States did. They had no idea about the savings 
that we could render to the government. And I think that was 
the fault of those of us who had thought, ``Sure, we will stay 
below the radar and just discuss this.''
    Mr. Cohen. Anybody else want to offer any new material?
    Mr. Lubbers. Well, I would just mention that at the time 
that the conference lost its funding, it was also undergoing 
reauthorization in the two Judiciary Committees in both houses, 
and that process was proceeding normally and going well, so 
this was an appropriations issue.
    I recall that on the Senate side there was actually a 
letter from eight senators, four Republicans and four 
Democrats, urging the Senate Appropriations Committee to 
maintain the funding that the Senate had voted for, and during 
the course of the conference committee, it didn't happen. So it 
was sort of caught up in the appropriation bowels of the time.
    Mr. Cohen. Do each of you think that ACUS should be more 
visible, or remain under the radar?
    Mr. Verkuil. Well, it seems to me the lesson is--excuse 
me--the lesson is that we should be more visible, if only to 
make sure that we are secure in our future and that we can 
continue to do our work, so I take Ms. Katzen's observations 
very seriously.
    I don't think we should, you know, we don't have to look 
for things to gain great visibility, but we are going to have a 
Web site, for example, which didn't exist when we stopped 14 
years ago, a Web site which will link us to other agencies, 
which I hope will be a home that people will come to to find 
good programs.
    We are going to use the advantages of electronic rulemaking 
internally. We are going to turn ourselves into--when we do 
recommendations, we want to have input from other agencies, 
from the Hill, and from the public so that we will be known and 
seen maybe better, even if we are still doing things that by 
themselves don't generate, you know, a high degree of 
visibility. That is how I would begin to approach it.
    Mr. Cohen. Anybody else want to contribute to that 
response--visible, not visible, better?
    Mr. Lubbers. I think the more visibility, the better.
    Ms. Katzen. So long as it is visibility for educative 
purposes rather than visibility for calling attention to one's 
self. And given the caliber of the chair and the people who I 
suspect will be appointed to the council and the plenary 
session, the assembly, I don't think that will be a difficulty.
    I think keeping the lines of communications open to the 
Hill are critical. They should be partners in this. It should 
be bipartisan, bicameral, actually nonpartisan. But there 
should be those channels open.
    Mr. Cohen. Thank you.
    I now yield to the Ranking Member, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Thank all of you for being here.
    I know sometimes to add some commitment to making the 
bureaucracy run not only smoothly but efficiently and 
effectively is a big challenge, because that is, you know, it 
is something that there is almost ubiquitous comment about, and 
so I appreciate what you do.
    In our Subcommittee's 21st Century Project, we identified 
seven areas, along with a number of issues within them, for 
study in potential administrative reform. And I see from your 
written statement that your suggestions for ACUS's initial 
agenda overlap to a very significant degree with that agenda 
that we identified in our report. And this Subcommittee 
invested, obviously, a great deal of time and effort and a 
great deal of a number of hearings in the 21st Century Project.
    So I am going to ask something incredibly presumptuous. 
Would you be prepared to at least consider making the agenda we 
identified in the project report ACUS's first agenda, or agenda 
for the first year? Mr. Verkuil, I will throw that at you. 
Again, forgive the presumption here.
    Mr. Verkuil. To make sure that the 21st agenda report would 
be part of our own agenda is the----
    Mr. Franks. Or at least be considered as the agenda of your 
first year.
    Mr. Verkuil. I think so. I think we are looking at it, and 
we have observed some very good thoughts already. We have--I 
would say, not exclusively relying on that, because we have--
the ABA administrative law section has made some good ideas, 
proposed some good ideas, too. But we are certainly using those 
as the two key documents in terms of structuring ourselves in 
the first year. And I would hope we would select out, you know, 
once we decide.
    It is a kind of a combination of the best idea, how quickly 
we can do some of these things, because you would like to take 
some that are easier off-the-shelf kind of ideas and some 
longer terms, some of the ones you mentioned in your earlier 
testimony, that are more theoretical and looking at changes, 
let us say, in the Administrative Procedure Act, or something 
like that, take a combination of short and long-term projects, 
find the good people to do the work to help us as consultants, 
and mesh them all together, and then present them to the 
council and get this thing going.
    I mean, I, as you know, I am sure, I am anxious to roll it 
out. And I will be--I promise you we will be guided very much 
by what is going on here.
    Mr. Franks. Well, in your written statement you identify a 
number of challenges you are facing as you restart ACUS, and I 
don't envy you, but these include issues with the applicability 
of the Federal Advisory Committee Act and the, you know, 
Constitution's Emoluments Clause, and your own review, updating 
and simplifying the ethics procedures.
    Are there any potential legislative reforms to the Federal 
Advisory Committee Act or the Administrative Conference Act or 
any of the statutes that might help you with these issues? Is 
there any congressional oversight activity that you think might 
help sort out any of the issues that you are confronting--in 
other words, legislation or oversight in these areas? What 
would you think would help you the most?
    Mr. Verkuil. I would like to be able to come back to you 
with an answer to that, Mr. Franks. I do think that right now 
in the Federal advisory committee area, we must commit a lot of 
our time to making sure it works well in this new electronic 
age. I think that is one of the questions. So we have made some 
successful contacts with GSA, who does manage the FACA process. 
We have worked on the Emoluments Clause issue, I think, 
hopefully, to good effect. We will hear back from the Office of 
Legal Counsel.
    And so we are in a position not yet to say we can't 
function within what we have, but the more we learn, the more 
we will be able to tell you, really, very closely, whether we 
need legislative help in that. Thank you, though, for asking.
    Mr. Franks. Well, listen, those are the questions I had, 
Mr. Chairman.
    Ms. Katzen, I appreciate your past support.
    All of you for what you have done here, and, Mr. Verkuil, 
all of you, I wish you the very best. You have got a tall 
challenge ahead of you. Thank you.
    Mr. Verkuil. Thank you, sir.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Cohen. You are welcome. Thank you, Mr. Franks. I 
appreciate your participation in this hearing and all the 
members of the panel.
    I thank everybody for their participation.
    Without objection, Members will have 5 legislative days to 
submit any additional written questions, which we will forward 
to you and ask that you promptly respond. They will be made 
part of the record. Without objection, the record will remain 
open 5 legislative days for the submission of any additional 
materials.
    Again, I thank everyone for their time and patience.
    The hearing of the Subcommittee on Commercial and 
Administrative Law is adjourned.
    [Whereupon, at 5:24 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

             Letter from the American Bar Association (ABA)
















































                                 
