THE SUPPOSITION of universal venality in human nature, "wrote Alexander Hamilton in Federalist No. 76, "is little less an error in political reasoning than the supposition of universal rectitude." The latter error, the supposition of rectitude, was the one made by the Senate Governmental Affairs Committee last January when it voted too quickly to confirm Bert Lance as director of the Office of Management and Budget. Now, in its eagerness to make up for its mishandling of the Lance affair, the committee may help set the stage for a Senate overreaction based on Hamilton's other "error in political reasoning."
This fall, the committee plans to begin hearings on a resolution that would create a permanent Senate Office on Nominations staffed with investigators who would do for all committees some of the work that Governmental Affairs failed to do on the Lance nomination. The resolution, sponsored by chairman Arabam Ribicoff, ranking minority member Charles Percy and another senior Republican, Jacob Javits, would for the first time set forth standards indicating both what the Senate expects in a nominee and how it intends to find out whether a nominee measures up to them. With these co-sponsors, the resolution is given a good chance of being reported to the floor.
Given the normal tendency of Congress to embrace procedural irrelvancies in the name of "reform," the resolution is surprisingly to the point. The standards it would establish do address some real shortcomings in the confirmation process. The danger in the present climate, however, is that the reform could end up feeding the Senate's and the press tendency to focus on issues that, in principle, are the easiest of those the Senate should be considering. It raises the specter of a Senate so concerned with possible venality that it ends up, under a sort of Gresham's Law of investigation, taking all of its limited time reviewing the details of a nominee's financial background, to the exclusion of more important and more difficult policy and institutional questions. If that happens, it also probably will end up driving many people with complex private affairs away from government service. So Little Time
THE LACK of standards procedures did play a role in the way the Lance confirmation was handled last January. The committee, partly through its own errors, found itself one week before President Carter's inauguration with little information about Lance, no time to get more information, and no procedural requirements that could overcome the political inertia leaning members toward accepting the President-elect's friend uncritically.
A quick review of what happened last January shows how important the time element was. President-elec Carter announced his attention to name Lance on Dec. 3, 1976. The Governmental Affairs Committee perhaps because of its lack of experience with confirmations, did not get around to mailing Lance its financial questionaire until the final week in December. The first draft of Lance's 1974 gubernatorial campaign fund overdrafts that had appeared Jan. 8 and 11, this Jan. 13 draft represented most of what the committee officially knew about Lance as of seven days before he was to be sworn in.
The most serious question anyone raised about Lance before he was confirmed had to do with the overdrafts the Calhoun National bank had permitted Mrs. Lance and relatives of other bank directors. The committee first learned of this, minority staff director John Childers said in an interview, from a New York Times story of Jan. 16.
Childers said he gained additional information on Monday, Jan. 17, the first day of Lance's confirmation hearings, from an Atlanta source to whom he promised anonymity. That source told him there were overdrafts in the $100,000 to $300,000 range by members of two families, one of which was Mrs. Lance's. Childers and a majority staff aide jointly called Acting Comptroller of the Currency Robert Bloom on the night of Jan. 17 and received what they considered as confirmation of their Atlanta source's information. Bloom said he would get a letter to the committee by the next morning.
Since the Lance hearings were to end then, the staff decided to ask Lance to meet with them at 9:30 to discuss the overdrafts and three other matters that had come to their attention. Lance showed up at about 9:40, leaving the staff 15 minutes for their questions. When the aides asked Lance about the overdrafts Lance reportedly said they related to the estate of Mrs. Lance's brother, who had committed suicide. Lance asked the staff not to go into the embarrassment to the family.
Lance's statement almost cried out for further investigation. Since the the comptroller had confirmed the fact that federal peopl e had made substantial overdrafts, could Lance's answer be accepted at face value? It later turned [WORD ILLEGIBLE] that it should not have been. Childers said, however, that he and the Republican senators to whom he reported Lance's response all felt satisfied by it. It was not directly inconsistent with the tip Childers had received, and that tip came from an untested, anonymous source. Furthermore, the committee received in the middle of its morning hearing the by now famous misleading letter from Bloom exonerating Lance for the bank's overdraft policy. Because political pressures for a committee vote that morning were intense, Bloom's letter literally closed the hearing and the investigation.
It is impossible, given Bloom's complicity, to know whether the committee might have uncovered Lance's deception if it had taken enough time to review the facts. Anyone experienced with investigations knows one never can predict how long an investigation may take, and nominees cannot be kept waiting forever. Some schedules clearly are inadequate, however. The committee staff had exactly one weekend between the day Lance filed his first draft and the committee's vote to confirm him. That may be better than nothing, but not by much. A Lack of Standards
THE SPECIFIC FACTS growing out of the way Governmental Affairs handled Lance's confirmation may never quite repeat themselves. Committees should know better after this than to wait until the last minute before asking written questions or accepting written answers. They are not likely to face another situation in which the major source of information about a nominee submits a misleading letter for the record that exonerates the nominee in a manner and at a time that shuts off further inquiry. And future committees almost surely will take up the While House's limited offer, made after Lance resigned, to let committee chairmen and ranking minority members look at the FBI's report to the President on a nominee.
To general problem is far more e e pervasive. Few Senate committees have any but the most rudimentary procedural standards for confirmations.
Not all committees operate on a completely ad hoc basis, of course. In mid-1973, the Commerce Committee began requiring all nominees to answer a committee-designed questionnaire relating to personal finances and positions on policy. The financial disclosure questions asked were the same for each nominee, but the policy questions, necessarily, were tailored for each office. Similar financial questionnaires now are used by Governmental Affairs, energy and Natural Resources, Banking, Housing and Urban Affairs, Human Resources, Intelligence and Small Business. The use of written policy questions is less widespread.
As spotty as the record may seem on written questions, it is a good deal spottier once one moves to other points. According to Common Cause's Bruce Adams, few committees with questionnaires demand the answers in time for a meaningful staff review. The Intelligence Committee asks for material seven days before the start of a hearing and Banking five days in advance.None has a longer period.
Adams, who has almost finished a Common Cause review of the confirmation process for 48 top Carter nominees, concludes that the record is a random one whatever the specific procedure analyzed. For example, his research showed that in only six of the 48 cases did the committee with the jurisdiction issue aa report to the full Senate summarizing its findings or even presenting quotations or information developed in the hearings. Only one of the six was longer than four pages (plus supplementary views.)
Hearing records were no more frequently available. In only six cases were the hearings printed before the floor vote. In other words, in the vast majority of cases, the Senate had to rely on word of mouth plus the media to learn about major nominees.
Nor were the hearing records particularly detailed when they were available. Only nine of the 48 nominees had hearings lasting more than one day, and only two of these lasted more two (Attorney General Griffin Bell's and Arms Control and Disarmament Agency director Pauuul Warnke'.)
After hearings are completed, there is no standard requirement that committees allow even a minimum "cooling off" period before voting. In 17 of the 48 cases, the committee voted at the end of the hearing, as Governmental Affairs did with Lance. Adams also noted that there were only six recorded floor votes in the 48 cases.
It might be argued that Adams' figures were developed at the start of a new administration, when the pressures of both time and politics for quick action are at their greatest. But that is the point. It is exactly when political pressures lean toward quick judgment that some minimum sstandardization can provide the Senate its best insitutional protection. An Office in Nominations
THE RIBICOFF-Percy-Javits resolution does not deal directly with the procedural problems exposed by the Lance confirmation or by Adams' study. Instead, it tries to impose standards indirectly, filtering all major nominations through an Office on Nominations that would be independent of the existing committees.
The proposed new office would be staffed with trained nonpartisan investigators, similar to General Accounting Office auditors, who would be more competent than most committee staff members to analyze financial and investigative reports. The resolution does not require the office to spend a minimum amount of time reviewing the material it receives, but it does set a maximum time of 15 days (renewable once for another 15 days if needed).
The office would be expected to write a summary report of the material it considered relevant in the financial and investigate data. The nominees' biographical and financial reports would be a available for public review. The office also would receive other investigative reports but these would be kept confidential, even from the committee with jurisdiction over the nomination. The only information the committee would receive would be material that the office verified and connsidered relevant. Unsubstantiated rumors would not be sent forward.
Once the office's reports are forwarded to the relevant committees, the committees would take over as they do now. The resolution would not require them to hold hearings, issue reports, take a minimum amount of time before voting to recommend confirmation, or take any of the othr precautions that would insulate committees from pressure for quick confirmation. The resolution's supporters feel the major opposition to the office is likely to come from those who see it as a threat to committee indepence. This perception would only be increased if an attempt were made to impose rigid procedural standards on the committees.
Another argument made against creating a new office is that it might become an overstaffed bureaucracy looking at minuscule questions to justify its existence during slack periods. The sponsors try to guard against this by giving the office the power to hire temporary staff from such places as the GAO or FBI when the workload is heavy. The idea, a Governmental Affairs aide said, is to create an office that could function in normal times with no more than a half dozen or dozen full-time employees.
One argument against hiring even this small number is that the committee staffs should be competent to do the job. But the fact is that a staff well equipped to process legislation need not, and probably does not, have the skills needed to review financial reports or evaluate field interviews. If the individual committees started hiring investigative specialists, th number probably would far exceed that needed to staff a separate office.
More importantly, investigators hired by the individual committees would be more subject to politcal pressure than would the staff of an independent Office on Nominations. These pressures, and the fear of unsubstantiated leaks, are what have led the White House to refuse staff access to FBI reports until now. If the Senate wants access to this confidential information, with its often unverified and scurrilous material, it owes the potential nominee at least this much protection of his or her privacy. What Senate Role?
THE SENATE'S coming reconsideration of its role in the appointment process is long overdue. The constitutional procedure - nomination by the President, confirmation by the Senate - was designed to prevent either branch from gaining sole control over key appointments. The early debates assumed without question that the Senate would prosecute this role vigorously.
Hamilton, in Federalist No. 77, even argued that Senate confirmation would be required before a President could remove key executive officals, let alone name new ones. (Hamilton said this provision would assure continutity in government by leaving most of the cabinet in place after a change in chief executives.) This interpretation of the removal power was defeated by the narrowest of margins in the First Congress. The issue resurfaced repeatedly during the 19th Century - most dramatically during Andrew Johnson's impeachment trial - and was not finally resolved in the President's favor until the 1926 Supreme Court decision in Myers v. U.S.
All through the early removal debates, it was assumed the Senate would play an active role in confirming people as they acceded to office. But this original understanding was eroded in a number of ways. First, the Senate over the years responded to the vast increase in federal offices and the growing power of the President by accepting presidential nominees for important positions almost uncritically. For lower-level offices, however, the power went in the reverse direction, as Presidents found themselves forced to accept senators' and House members' nominees.
The Senate began reasserting its role in the confirmation process during the Nixon administration. It should be evident from the record, however, that this reassertion has been sporadic at best. The Ribicoff-Percy-Javits resolution is a reasonable first step toward making the Senate's review procedure more systematic. The Harder Questions
NO ONE SHOULD be lulled by the simplicity of the proposed reform, however, into thinking it addresses all of the problems posed by the confirmation process. The Senate as a whole, and the Governmental Affairs Committee in particular, are too susceptible to the reformist notion that whenever there is a problem, creating a new institution is the answer. The new institution proposed in this case may help, but the problem of judging human character and ability will remain difficult.
The difficulties lurk just beneath the surface of the second title of the resolution, which makes a vague attempt to set substantive standards for confirmation. These boil down to two: The Senate should not confirm a nominee unless he or she is affirmatively qualified for the position in question and unless he or she is a person of integrity.
The idea of asking for affirmative qualification is important, if only because it would reverse the present senatorial habit of confirming anybody unless clearly unqualified.And no one would quarrel with requiring integrity. But that it the start of inquiry, not the end. The difficult questions are, what really qualifies a person to hold a paricular job? And what sort of behavior throws a person's integrity into question?
In recent years, the question of integrity has been replaced almost as if people feel the only way to deal with dishonesty is to make temptation impossible. That might be acceptable if the only goal were to avoid conflicts of interest, but it is not. The goal should be to find people who will serve the public interest, even if that means permitting some people to serve in governemt who cannot (or will not) meet the mechanistic tests now in vogue.
Does it really make sense, for example, to require all future Federal Trade or Consumer Product Safety commissioners to foreswear doing any business related to these commissions for a substantial period of time after service? Given both commissions' sweeping jurisdictions, that requirement could well be equivalent to asking people with business careers to give up business if they want to serve. For anyone who wants to freeze the business communtiy out of government, that may not seem a bad idea. But anyone who wants balanced commissions ought to be alarmed at the overreaction.
It ought to be enough to require a nominee to disclose any business connections that might produce conflicts and to draw precise requirements for self-disqualification whenever cases involve those connections. It also might help to have sabbatical salaries that would keep people on the government payroll for a limited time after their service to save them from having to look for a job while in the middle of doing the public's business.(The sabbatical salary idea comes from former Federal Power Commission Chairman Lee C. White. It has been endorsed by organizations as diverse as The Business Roundtable and Common Cause.) It would be worth remembering Hamilton's statement about the error of assuming universal venality before asking much more than this of our public servants.
Political scientist and former White House aide Robert A. Goldwin argues in the just published "Moral Foundations of the American Republic" that Americans are an extremely moral people. As evidence, Goldwin notes that every time it becomes discovered that someone has done something wrong, we can depend on there being a great public outery about it. Anyone experienced with the cynicism prevailing in other nations knows that this is no small matter. Among other things, it assures the press that it will find an eager audience whenever it uncovers malfeasance.
Given what appear to be the basic proclivities of the press and the public, therefore, the present attempt to find institutional arrangements to guarantee integrity seems to place the emphasis on the easiest part of the problem of finding good public servants. Creating a Senate Office on Nominations could feed that misplaced emphasis if the Senate is not careful.
On the other hand, it could conceivably do the opposite. By giving investigative work to people who, unlike senators, have no particular craving for headlines, the new office might induce the senators to look elsewhere for their publicity. By freeing committee staffs from the burden of investigating every nominee's integrity, the office could free them to research other issues. The Problem of Policy
THAT RAISES the next question: Where should the Senate look, if not solely at integrity for suspicions of venality? That it should examine a nominee's competence almost goes without saying. But should it also look at the policies a nominee is likely to pursue once confirmed, as some committees do?
Confirmation hearings probably are good time to get all nominees to state their views about procedural questions relating to the office they will hold, and it would not be inappropriate for the Senate to consider rejecting a nominee whose answers seem a threat to congressional prerogatives. However, no similarly unified rule could conceivably cover the Senate's examination of a nominee's policy views. It clearly makes sense to use the confirmation process to get nominees' views on the record, but the tougher question is what the Senate should do if it has serious problems with the viewpoints expressed.
Here a distinction based on the office the nominee would hold seems appropriate. It a person is nominated to a cabinet or subcabinet executive branch position, the Senate should not expect that the nominee do anything other than state the President's position clearly for the record. To reject a nominees soley because he or she stands for policies the Presidents stands for would reraise the most contentious issues supposedly resolved.
This would not be true, however, if the Senate rejected a prospective regulatory commissioner on policy grounds Congress always has maintained a "special relationship" between it and the commissions and it has a right to expect prospective commissioners to reflect Congress' understanding of regulatory statutes.
The proper role of the Senate withe respect to judicial nominees is far more difficult to resolve. The confirmation process may be the only practical time to find out anything about the type of judge a nominee will be. On the other hand, the Senate always has been reluctant to reject an obviously qualified judge solely because it has problems with the way he or she interprets specific clauses of the Constitution. While this reticence may be questioned in theory, it probably is salutary when one thinks of the present low level of constitutional debate in the Senate. Similarly, one might wish the Senate would at least look at a nominee's jurisprudence. Sadly, one must also feel qualms about the way the modern Senate would perform this important task. It seems most appropriate, therefore, to leave this question hanging.
This point about judges can be made more generally. There are any number of desirable results one cannot achieve merely through procedural or institutional reforms, no matter how thorough the reform might be.