[Congressional Record Volume 144, Number 99 (Wednesday, July 22, 1998)]
[Extensions of Remarks]
[Pages E1377-E1378]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1377]]



           APPOINTMENT OF THE COMPTROLLER GENERAL AND DEPUTY

                                 ______
                                 

                            HON. DAN BURTON

                               of indiana

                    in the house of representatives

                        Wednesday, July 22, 1998

  Mr. BURTON of Indiana. Mr. Speaker, today I am introducing 
legislation to change the appointment process for the Comptroller 
General and Deputy Comptroller General. These officials are now 
Presidential appointees even though they are part of the Legislative 
branch, not the Executive branch. Consistent with their status as 
Legislative branch officials, my bill provides for their appointment by 
the Congress. The bill would not alter in any way the independence and 
non-partisanship of these officials or of the agency they head, the 
General Accounting Office.
  Under current law, the Comptroller General is appointed by the 
President, with the advice and consent of the Senate, to a 15-year term 
of office. The law provides for a bipartisan, bicameral Congressional 
commission to recommend individuals to the President as potential 
appointees for Comptroller General. The commission is composed of the 
Speaker of the House, the President pro tempore of the Senate, the 
majority and minority leaders of the House and Senate, and the chairs 
and ranking minority members of the House Committee on Government 
Reform and Oversight and the Senate Committee on Governmental Affairs. 
The same commission, with the Comptroller General as an additional 
member, makes recommendations to the President for Deputy Comptroller 
General.
  When the General Accounting Office was created in 1921, the 
Comptroller General was made a Presidential appointee. This was because 
GAO's original functions were almost entirely ``executive'' in nature 
and, therefore, had to be vested in an ``officer of the United States'' 
appointed by the President. However, GAO's functions have completely 
changed since 1921. Over the years, its preeminent role as a 
Legislative branch agency providing direct support to Congress emerged. 
At the same time, its ``executive'' functions virtually disappeared. 
Indeed, the Supreme Court's 1986 decision in Bowsher v. Synar, 478 U.S. 
714, held that GAO cannot perform ``executive'' functions.
  Mr. Speaker, the idea that Congress should appoint the leaders of its 
own Congressional ``watchdog'' agency is not new. During the mid 
1970's, Senator Lee Metcalf and Congressman Jack Brooks sponsored 
legislation to provide for Congressional appointment of the Comptroller 
General. This legislation was not enacted due to concern that it could 
jeopardize GAO's ability to perform the limited ``executive'' functions 
it retained at that time. As a compromise, the current appointment 
process was enacted in 1980 to retain Presidential appointment but 
establish the bipartisan, bicameral Congressional commission to 
recommend names to the President.
  Congress would have made the Comptroller General a Congressional 
appointee in 1980 were it not for the lingering concerns about the 
agency ``executive'' functions. The Supreme Court's subsequent decision 
in Bowsher v. Synar laid these concerns to rest once and for all, and 
thereby removed the last vestige of the original rationale for 
Presidential appointment of the Comptroller General and Deputy 
Comptroller General.
  The time has come to complete the task Congress began years ago. GAO 
is now firmly established in law and practice as a Congressional 
support agency that Congress relies upon every day for a wide range of 
information and advice. It makes no more sense for the President to 
appoint the leaders of the GAO than it would for Congress to appoint 
the Director and Deputy Director of OMB. It is particularly incongruous 
that the President should appoint Congressional officials whose 
fundamental mission is to support oversight of the very branch of 
government that the President heads.
  As my predecessors recognized, Congress has a strong institutional 
interest in appointing the Comptroller General. Senator Metcalf 
described this as ``a congressional declaration of independence from 
the White House.'' Congressman Brooks said that it ``would go a long 
way toward restoring to Congress some of the power and prestige that 
have slipped away to the executive branch over the years.''
  In addition to being sound in concept, changing the appointment 
process has become a practical necessity since the current process is 
broken. The term of the last Comptroller General, Charles A. Bowsher, 
expired on September 30, 1996. Thereafter, in accordance with the 
current law, the Congressional commission interviewed a number of 
candidates for Comptroller General and, by majority vote, recommended 3 
names to the President. However, the President rejected the 
commission's recommendations out of hand and with no stated reasons. 
Unfortunately, the process now appears to be stalemated with no end in 
sight, and GAO has been without permanent leadership for over 1\1/2\ 
years. Moreover, the current process has never successfully led to the 
appointment of a Deputy Comptroller General. Due to a series of 
impasses involving different Congresses and Presidents spanning many 
years, Mr. Bowsher remained without a Deputy for his entire 15-year 
term of office.
  Finally, I want to reiterate that enactment of this bill will not 
affect the independence, non-partisanship, and objectivity of the GAO. 
These attributes are, of course, essential to maintaining the agency's 
credibility and, therefore, its usefulness to the Congress. It would be 
self-defeating for Congress to do anything to undercut them, and, 
indeed, the bill carefully preserves them. The bill retains the current 
Congressional commission now provided by law and makes it the 
appointing authority. This ensures bipartisan participation in the 
appointment process. The bill also retains the current provisions 
governing the terms of office of the Comptroller General and the Deputy 
and severely limiting the means and grounds for their removal from 
office.
  Mr. Speaker, I urge prompt action on this important legislation. The 
GAO provides invaluable assistance and support to the Congress. We need 
to provide GAO with the permanent leadership it needs to do its work 
and serve all of the Congress most effectively. I have attached a 
series of questions and answers that provide additional background.

                   Questions and Answers on H.R. 4296

       Q. What does the bill do?
       A. Current law provides for appointment of the Comptroller 
     General and Deputy Comptroller General by the President, with 
     the advice and consent of the Senate. Under the current law, 
     which was last amended in 1980, a bipartisan, bicameral 
     Congressional commission recommends names to the President as 
     potential appointees for Comptroller General and Deputy. The 
     commission is composed of the Speaker of the House, the 
     President pro tempore of the Senate, the majority and 
     minority leaders of the House and Senate, and the chairs and 
     ranking minority members of the House Committee on Government 
     Reform and Oversight and the Senate Committee on Governmental 
     Affairs. The commission must submit at least 3 names to the 
     President for Comptroller General. While the President is 
     expected to ``give great weight'' to the commission's 
     recommendations, he is not bound by them. The President may 
     request additional names, or he may nominate someone not 
     recommended by the commission.
       The bill makes the existing bipartisan, bicameral 
     Congressional commission the appointing authority for the 
     comptroller General and the Deputy.
       Q. Why is the Comptroller General a Presidential appointee 
     in the first place?
       A. When GAO was established in 1921, its core mission was 
     to perform Executive branch auditing and accounting functions 
     that were transferred to GAO from the Treasury Department. 
     Under the Constitution, such ``executive'' functions can only 
     be vested in an agency headed by an ``officer of the United 
     States'' appointed in accordance with the Constitution's 
     ``appointments cause.'' Therefore, the Comptroller General 
     had to be a Presidential appointee. This is no longer the 
     case since GAO no longer performs ``executive'' functions. It 
     is now firmly established in law and practice that the 
     Comptroller General and GAO are part of the Legislative 
     branch and that they can perform only ``legislative'' 
     functions in support of Congress.
       Q. Does shifting appointment of the Comptroller General 
     from the President to Congress pose any legal problems?
       A. No. In 1977 testimony addressing Congressional 
     involvement in the Comptroller General's appointment, a 
     Justice Department official stated that--``so long as the 
     Comptroller General is performing functions that are of a 
     legislative nature such as investigating and disseminating 
     information . . . it seems to us pretty clear that . . . his 
     appointment may be handled in whatever manner Congress deems 
     appropriate.''
       There were concerns over changing the appointment process 
     at that time since GAO still performed some ``executive'' 
     functions.

[[Page E1378]]

     However, the Supreme Court subsequently held in Bowsher v. 
     Synar, 478 U.S. 714 (1986), that the Comptroller General 
     could not constitutionally perform ``executive'' functions 
     notwithstanding his appointment by the President. The Court 
     reasoned that the statutory provisions governing removal of 
     the Comptroller General, which vest removal authority in 
     Congress instead of the President, prevented the Comptroller 
     from being an ``officer of the United States'' and thereby 
     performing ``executive'' functions regardless of how he was 
     appointed. Thus, the Comptroller General's status as a 
     Presidential appointee has no legal significance today.
       Q. Why change the Comptroller General appointment process 
     now?
       A. There are three main reasons to change the appointment 
     process:
       (1) The only reason for making the Comptroller General a 
     Presidential appointee in the first place and the only reason 
     Congress has retained the Presidential appointment thus far--
     to preserve GAO's ability to perform ``executive'' 
     functions--was eliminated by the Supreme Court's decision in 
     Bowsher v. Synar. Following this decision, Congress enacted 
     legislation repealing, modifying, or transferring to the 
     Executive branch virtually all of GAO's remaining 
     ``executive'' functions. Now is the first opportunity 
     Congress has to complete the task by changing the appointment 
     process.
       (2) Given GAO's role as Congress' ``watchdog'' agency over 
     the Executive branch, it makes no sense for the President to 
     appoint the Comptroller General and it is only natural to 
     shift this responsibility to Congress. On a daily basis, GAO 
     provides information and advice to Congress covering the full 
     range of legislative and oversight issues that Congress 
     faces. Given Congress' reliance on GAO and its close working 
     relationship with GAO, Congress should appoint the head of 
     this agency. Having the President continue to appoint the 
     Comptroller General makes as much sense as it would for 
     Congress to appoint the Director of OMB. It is particularly 
     incongruous for the President to appoint the head of an 
     agency whose exclusive mission is supporting Congressional 
     oversight of the branch of government that the President 
     heads.
       (3) The current appointment process is broken and needs 
     repair. Following expiration of former Comptroller General 
     Charles Bowsher's term on September 30, 1996, the 
     Congressional commission was established as provided by law. 
     Working on a bipartisan basis, the commission developed, 
     screened, and interviewed a number of candidates for 
     Comptroller General. By majority vote and in accordance with 
     the current law, the commission recommended 3 names to the 
     President. However, the President rejected the commission's 
     recommendations out of hand and with no stated reasons. As a 
     result, the appointment process appears to be stalemated with 
     no end in sight and GAO has been without permanent leadership 
     for well over 1\1/2\ years. Further, the current process has 
     never led to the appointment of a Deputy Comptroller General. 
     Due to a series of impasses involving different Congresses 
     and Presidents spanning many years, Mr. Bowsher remained 
     without a Deputy for his entire 15-year term of office.
       Q. Will making the Comptroller General a Congressional 
     appointee detract from GAO's independence and non-
     partisanship?
       A. No. GAO's independence and non-partisanship are, of 
     course, essential to maintaining the agency's credibility 
     and, hence, its usefulness to the Congress. It would be 
     foolish and self-defeating for Congress to do anything to 
     undercut these attributes. There is no reason to think that 
     eliminating the Presidential appointment would have this 
     effect. The current commission process ensures bipartisan 
     participation in the appointment. The Comptroller's fixed 
     term of office, combined with the severe statutory limits on 
     removal of the Comptroller, provide more than adequate 
     assurance of independence.
       Q. Will making the Comptroller General a Congressional 
     appointee politicize the appointment process?
       A. No. Congress has a strong institutional interest in 
     making the Comptroller General a Congressional appointee that 
     should transcend politics. In fact, the leading proponents of 
     Congressional appointment of the Comptroller General have 
     been prominent Democratic Members of Congress.
       In 1975, Senator Lee Metcalf, then a senior member of the 
     Senate Governmental Affairs Committee and Vice Chairman of 
     the Joint Committee on Congressional Operations, introduced 
     legislation to provide for Congressional appointment of the 
     Comptroller General as well as other Legislative branch 
     officials. Senator Metcalf described his legislation as ``a 
     congressional declaration of administrative independence from 
     the White House'' and noted that ``there are compelling 
     reasons from an institutional perspective why we should take 
     a hard look at the manner in which [these officials] are 
     appointed.'' He concluded that ``the time has come to provide 
     for their appointment by and for the Congress of which they 
     are a part.''
       Congressman Jack Brooks, then Chairman of the Government 
     Operations Committee, introduced similar legislation on the 
     House side. Chairman Brooks also stressed the importance of 
     his bill from an institutional perspective, noting that the 
     bill ``would go a long way toward restoring to Congress some 
     of the power and prestige that have slipped away to the 
     executive branch over the years.'' He added: ``. . . The 
     doctrine of separation of powers is basic to our system of 
     government and Congress contributes to the weakening of that 
     system when it permits the President to exercise authority in 
     the legislative domain.''
       When both GAO and the Justice Department resisted direct 
     Congressional appointment of the Comptroller General based on 
     the then-existing concerns about GAO's ability to retain 
     ``executive'' functions, Chairman Brooks sought to require 
     the President to appoint a Comptroller General from names 
     recommended by the Congressional commission. GAO supported 
     this approach, but Justice objected that even this limitation 
     on the President's appointment authority would be 
     unconstitutional. Chairman Brooks finally had to settle for 
     the current process, whereby a Congressional commission 
     submits nonbinding recommendations to the President but the 
     President remains free to nominate whomever he wishes.
       Q. Since some other Congressional officials are appointed 
     by the President, why not the Comptroller General?
       A. The Librarian of Congress probably needs to be a 
     Presidential appointee since the Library performs 
     ``executive'' functions under the copyright laws. Similarly, 
     the Public Printer performs functions that could be 
     considered ``executive'' in nature. One could question the 
     current status of the Architect of the Capitol. In any event, 
     however, the Architect's functions are not at all analogous 
     to those of the Comptroller General and GAO. The 
     Congressional agency that is most analogous to GAO is the 
     Congressional Budget Office, whose head is appointed by 
     Congress.

     

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