US CONGRESSIONAL RESEARCH SERVICE
CONTENTS
Thursday 7 February 1991
Appointments review
US Congressional Research Service
Adjournment
STANDING COMMITTEE ON GOVERNMENT AGENCIES
Chair: Runciman, Robert W. (Leeds-Grenville PC)
Vice-Chair: McLean, Allan K. (Simcoe East PC)
Bradley, James J. (St. Catharines L)
Frankford, Robert (Scarborough East NDP)
Grandmaître, Bernard (Ottawa East L)
Haslam, Karen (Perth NDP)
Hayes, Pat (Essex-Kent NDP)
McGuinty, Dalton (Ottawa South L)
Silipo, Tony (Dovercourt NDP)
Stockwell, Chris (Etobicoke West PC)
Waters, Daniel (Muskoka-Georgian Bay NDP)
Wiseman, Jim (Durham West NDP)
Substitutions:
Jackson, Cameron (Burlington South PC) for Mr Stockwell
Perruzza, Anthony (Downsview NDP) for Mr Frankford
Clerk pro tem: Freedman, Lisa
Staff: Pond, David Research Officer, Legislative Research Service
The committee met at 1407 in committee room 1.
APPOINTMENTS REVIEW PROCESS
Resuming consideration of the appointments review process.
The Chair: I call the meeting to order. I think we are in for an interesting afternoon, as a matter of fact. I would like to call our witness this afternoon, who is Dr Louis Fisher from the US Congressional Research Service. Dr Fisher, would you like to come forward please.
Ms Haslam: Mr Chairman, could I just interject here? First of all, I wanted to say welcome, but I wanted to apologize and explain that Pat Hayes is held up with some picketers apparently at his ministry and will come in late, and I hope he does not disturb you. I also wanted to mention that Mr Frankford, originally on this committee, is in the hospital. But he had asked for copies of the Hansard and I wondered if that could be done for this committee. He would like to look them over.
Mr Bradley: Is he in hospital? Is he ill?
Ms Haslam: Very ill. He has undergone an operation.
US CONGRESSIONAL RESEARCH SERVICE
The Chair: Dr Fisher, on behalf of all members of the committee, welcome. We appreciate your taking time out of your schedule to travel to Toronto and appear before us to provide us with some advice in respect to the appointments review process in the US Congress.
What I would like to do at this juncture is just turn the floor over to you and perhaps you could describe how the system operates in Washington -- I know you have had some opportunity to take a look at the temporary standing order -- and any comments you may wish to offer in respect to that. The floor is yours.
Dr Fisher: Thank you very much. I came here partly for selfish reasons. My basic interest at the Library of Congress is separation of powers, so whenever I come upon a country with a parliamentary past that is using certain checks and balances, I like to see what is going on. As some of you know, I went to Bulgaria last week on an American Bar Association trip giving assistance to countries in eastern Europe. They are very, very interested in separation of powers and checks and balances, and we spent a lot of time talking independence of the judiciary.
I thought what I would do is look through the terms of reference in the paragraphs and make some comments about how that contrasts with the role of the US Senate. Then you can ask further questions.
I have some documents with me. I do not think they will be too helpful to you, but I certainly brought up and will leave with you the rules of the US Senate with regard to nominations. Then each of the committees has a role in nominations in the Senate and they have their own separate rules, and I brought up some representative committees and will leave that with you as well.
I gather under your system you are the only committee that reviews appointees, whereas in the US Senate many committees do. At least at our level, the review of appointments has a very important role in communication. It is not just whether an appointee is qualified or not. The process is one in which executive officials and legislators are able to communicate about a specific person as to whether that person is the right one to carry out programs, what those programs are, educating that nominee. So there is an informal process of communication that is a dividend to it regardless of how the committee acts on the nominee.
I notice in paragraph 1 the Lieutenant Governor in Council or the Premier has to provide you with certain information about the person to be appointed, the position description, summary of the person's qualifications, and you go into that a little bit more in paragraph 10.
I guess one big difference in the US Senate is that it receives from the executive branch information, but of course it has its own independent research capability, its own team of people who can look into that person's background and credentials, receives information from outside sources, and one of the things I will leave with you from the Senate foreign relations committee, which is concerned, say, about ambassadors, what has been its role, and it will want to know very specifically about what that person has done in terms of contributions to the political party of the year, whether that was the reason the person was brought up as a nominee, what that person's qualifications are for the post. We have become much more concerned about financial contributions and conflict of interest for nominees. Committees will spend a lot of time looking into that.
Paragraph 4 talks about the committee's task being divided between various parties. I do not know how it operates here, but in the US Senate the responsibility for the nomination process is totally with the majority party, although for the US Senate to operate it always needs bipartisan activity. The reason for that is, most of what the US Senate does on the floor is for the party leader, the majority leader to say, "I ask unanimous consent for all of this," a deal that has been worked out between the parties, and since he is asking for unanimous consent, any one senator can object and kill it. So there is in the nature of the US Senate, even though the majority party is formally and officially responsible, obligation for bipartisan co-operation on the floor and in committee and the committees generally work that way.
Paragraph 5 for you, of course, implies that the intended appointee need not be called as a witness. For us, the nominee must appear. That is the whole purpose of the nomination process, so that you can develop between the nominee and the committee what the programs are, that they will be carried out as enacted.
You have other provisions which are different from ours. If you do not act in a certain number of days, it is assumed that the name is reported to the floor and approved by the floor. For us, those prerogatives are centred in the committees. The US Senate on the floor always has power over its committees. If the Senate committee does not act, you can always yank it from the committee, but that is not the way it works. Through committee and decentralization you depend on the committee and if the committee decides not to move, the name is dead. At some point the executive branch recognizes that and it withdraws the name. That is all that can be done. There is no way you can get approval without committee support.
Committees sometimes could take no action and say, "We haven't reached any agreement and we are going to give it out to the floor and let the Senate as a whole act on it without any recommendation from us." That is an option and sometimes that is done. If it is done, it is certainly a cloud over that nominee. So we would not have a provision, as you do, in paragraph 9 where a committee could waive its right to review an intended appointment. Paragraph 11 for you limits committee review to no more than three hours.
I brought along from the Senate judiciary committee its calendar describing what it has done for the year. There is a separate page calendar of nominations. You go down by what the office is, who the person was and what the committee did, so the page I will leave with you is US Supreme Court Justices, and the first one is Bork, Robert H., referred 7 July 1987 to the Senate judiciary committee, hearings held for 12 days. Of course, he is not there for all that. He is there maybe half the time and then witnesses from the outside come in. It shows what the committee vote was: ordered the name unfavourably reported. In our case, we do not always have a report. We rarely would have a written report to a company or name. We do in the case of Bork. We do in the case of a few others. But most of the time no written report is required. The name goes out for debate but usually not a record as to what the committee did and why it did in terms of the rationale.
Paragraph 12 for you prohibits the committee from calling anyone as witness other than the intended appointee, as I have mentioned. Committees generally invite people from the public sector, from interest groups, professors, experts, often people who would testify in support of the nominee, senators or representatives from that state who would like to make a statement for the nominee. It is a fairly elaborate process.
Paragraph 13 has some restrictions on you, when you shall vote to concur or not, the time for that determination. Those matters are left of course, under our system, to the Senate committees for their decision; they are not directed through central rules.
Just a few other comments. Paragraph 14 states that a committee report will be automatically adopted by the House. It can even permit adoption when the House is not meeting. It does not happen in the US Senate, where the vote by the Senate, under the Constitution, has to be done as a body. It would not be done, under our Constitution, just because the committee had acted or not. It has to be a full-floor action for us.
As I understand the huge differences between your system and ours, it is interesting to me that even on the basis that you have, there is opportunity at the national level in Canada and in some of the provinces for some review by committee. I would be interested, before I leave today, to get a better understanding as to what has brought that to pass. It is a fairly new development for you.
I will leave the documents I brought up with me and respond to any kind of questions you have about the system as it operates in the US Senate.
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The Chair: Thank you very much, Dr Fisher. I am sure we will have lots of questions. Our first questioner is Mr Grandmaître.
Mr Grandmaître: Yes, doctor, in your opening remarks you did say, or I did understand, that you had many committees approving or reviewing appointments or nominees. Can you tell us a little more about this, how many committees and how they work?
Dr Fisher: It is not a constitutional issue for us at all in terms of language in the text of the Constitution. It all depends on how each, the House of Representatives or the Senate, wants to regulate its activities. The Senate initially did not have standing committees. They would have temporary committees, but within a decade or two we had standing committees, and once they became standing permanent committees they began to acquire prerogatives in their area of jurisdiction. So not only would they have jurisdiction over legislation in that area, say, foreign relations, any bills relating to that, but then they would have jurisdiction over whatever else in government would attach to it, including nominations. We have developed a system where a committee on foreign relations will control designated appointments; a Senate committee on judiciary, of course, judges and US attorneys and marshals; a committee on commerce, many appointments, so whatever subject area they have and whatever agencies and departments as a subject matter will go with it, nominees. I would say practically every committee in the Senate has a role in the nomination process, depending on the jurisdiction.
Mr Grandmaître: These committees have to file a report to the House, or to whom?
Dr Fisher: The Senate committees would report their findings on nominees to the floor of the Senate. The House of Representatives has no role in the appointment process formally; informally, it could, under certain circumstances.
So the name would go from the President to the Senate committee. They would consider it. If they decide to act favourably, it would come out on the floor and then every senator has a right to vote on that nomination.
Mr Grandmaître: As you know, we do not have a veto, not that this committee is looking for a veto power, but --
Mr Bradley: Some of us are.
Mr Grandmaître: I am speaking for myself today. But we are limited as to the number of positions we can review. We are limited. We have a list of people whom we call the untouchables, whereas if I understood your remarks, everybody must appear before a committee back home.
Dr Fisher: That is true.
Mr Grandmaître: Everybody, I see. That is very interesting.
Dr Fisher: I will qualify that a little bit. The US Senate actually gets involved on appointments of military people. I entered the army in 1957. In 1959 I went from a second lieutenant to a first lieutenant. That gets action by the US Senate, so if you look in the Congressional Record you will see page after page after page. These are nominations and appointments, and obviously it is done en bloc. There is no way you can individually consider those. So there are a multitude of offices and appointments done without any kind of process we are talking about now. But when you get to heads of departments and deputy heads and assistant secretaries and so forth, those definitely come up before the committee and go through this process.
Mr Grandmaître: Did you have to appear before a committee?
Dr Fisher: No. That is all done in a fairly automatic way. Only if someone out of a list of thousands and thousands has information on a particular person, then that could become an issue. Otherwise it is routinized.
Mr Grandmaître: I know you have only had a short time to look at our terms of reference. Can you, in your own words, describe the pros and cons of our terms of reference?
Dr Fisher: No. I can compare the differences between ours, but the terms of reference for you comes out of your own parliamentary system, and judgement from me, with our very different separation of power, would not make any sense. What always is of interest to me is that you may be considering, on a lesser scale, some little bit of a check and balance system here. In the United States, we certainly do not adopt a parliamentary model, but we have moved in many instances to centre power in the executive branch, a little bit like a parliamentary system, so I think the two systems seem to borrow from one another.
Mr Grandmaître: But you will agree that your committee system -- let's call it a system -- has more power than this committee?
Dr Fisher: The committee system in the United States has more power because Congress, as a body, has prerogatives given to it by the Constitution. Even when the President is of your own party, members of Congress will often decide, "Even though it embarrasses my President, I have a duty to protect the prerogatives of Congress."
Mr Waters: I am curious. You are saying that in your system, the appointment of virtually everybody, including the local bee inspector, would have to go before a committee. I was just wondering how many people a single committee would look at in the course of a year. Not all of the committees, because in our case we only have one, but we are looking at somewhere around 5,000 appointments or something. How many would come before any individual committee in the US system?
Dr Fisher: It is a massive number, but of course the staffing of the committees is very substantial. What would be the number of staff here for Parliament?
Ms Haslam: Two.
Dr Fisher: Not just in the committee but in Parliament as a whole.
Ms Haslam: Two.
Mr Waters: Virtually, that is it, is it not, that the Legislature has committed to this process. It is a new process and we have two people at this point.
Interjections.
The Chair: Mr Waters has the floor. You can all have an opportunity.
Mr Waters: The Premier's office has a staff, but those are political people. I am saying the Legislature. I am saying there is a difference. The Legislature has committed two people to this committee.
Dr Fisher: The US Congress, if you count committee staff and personal staff, would probably have towards 20,000 staff. I am with the Library of Congress, with the Congressional Research Service, and we do 100% work for members and committees; we are 800. Then Congress has a General Accounting Office to help on investigation; that is close to 5,000. Congress has a Congressional Budget Office, about 200, and Congress has an office of technology assessment, maybe a little over 100.
Actually, the committees with all that staffing could not do the job we are talking about, because a lot of the work for committees -- they get a lot of good information from private groups, industry groups and labour groups who are watching this process. They are badly called lobbyists, as though they have some ulterior motive, but they have good information. So that expands the information and all that is brought to bear.
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Mr Waters: But the local beekeeper, bee inspector, something like this, does not necessarily go before a committee.
Dr Fisher: No. Much of that can be done in a very routine fashion. For all the policy-making positions, the concern of Congress, different from you, I think, is that it pass the statutes adopting national policy and then people come in to appointive positions who do not like the programs and are not going to carry them out. You want to make sure that that person understands the program, has a commitment to it, and that is why our system works the way it does.
Mr Waters: The United States geographically is very close to the size of Canada. Do you bring everybody to Washington for these interviews?
Mr Grandmaître: At $78 an hour.
Dr Fisher: Most of the ones we are talking about would come to Congress. It is possible for committees in the Senate and the House to do what we call field hearings, go out to that state and region, but that would be for legislative matters or others. I think the appointment process, nomination, is done in DC. That is the process we have. I am just trying to think of, say, somewhere of a local nature, say a US attorney who is going to operate out of California. Would he be brought in? I think he would. It is a position subject to advice and consent of the Senate, and it can often be an important position.
Mr Waters: Let's take the state of California, or any state. Is there a system in place where the state legislatures do something similar?
Dr Fisher: I think the separation of powers system in the United States operates at the state level with a lot of differences, but in terms of the separation between the executive and legislature powers it is the same process.
Mr Waters: They would have an appointments committee that would review appointments of a state nature?
Dr Fisher: There would. There would be some differences. For instance, we appoint federal judges subject to the advice and consent of the Senate, whereas a lot of states elect judges; no appointment is involved. So there would be some differences at the state level.
Mr McGuinty: Are there any restrictions in terms of the people who will be obtaining positions or employment, any restrictions in terms of who you may or may not call? I gather from Dan Waters's questions that we are dealing with vast numbers of people. Does the committee have the right to select any specific person and have that person appear before it?
Dr Fisher: You mean when a nomination hearing is held, is there any restriction on what a committee can do in calling witnesses?
Mr McGuinty: No. For instance, take your case. You said when you were in the military you were dealt with en bloc. Could you have been hauled before the committee individually?
Dr Fisher: If information had come that I had done something of a scandalous nature in the military -- I do not think it would be at lieutenant level, but at the general level or something like that -- yes, it could be a cause célèbre, and you could be brought in and it could be an embarrassment or you may be forced to resign. This happened.
Mr McGuinty: I am wondering if, implicit in your answer, there is some kind of presumption that has to be rebutted before we can ask a particular intended appointee to appear before that committee. You mentioned a scandal or something. Are you thinking from a political perspective or legally is there some hurdle to be overcome?
Dr Fisher: The ones we are talking about en bloc, the thousands and thousands that go through, the presumption is that there is no problem unless someone can raise a problem.
Mr McGuinty: I see. So there would be an obligation on a committee member, for instance, to show that there was a problem?
Dr Fisher: Right, or someone from the private sector does their homework and presents it to a member.
Mr McGuinty: What is the makeup of these committees in terms of how many people would sit on them?
Dr Fisher: You have 100 senators and about 20 standing committees, and there is multiple memberships, so I would think the average Senate committee would have about 15 or 20 members.
Mr McGuinty: In terms of the numbers representing the parties, how does that work?
Dr Fisher: In the Senate, the ratio in committee is roughly the same as it is on the full Senate, so whatever Republicans and Democrats have on the Senate as a whole would be reflected in committee. The House of Representatives is a little bit different.
Mr McGuinty: I see. I gather that effectively the committee does have a right to veto appointments.
Dr Fisher: They do not have a right to veto. They have a right not to act, which will kill a name.
Mr McGuinty: Is that what they generally resort to if they are unhappy with a particular intended appointment?
Dr Fisher: Yes. If you look at the statistics on how often the Senate rejects people, it does not look like many. But what you are bringing up is the way it is often done, where, even before a name is made public, the executive branch will tell a committee, "We're thinking of sending up this name," and the committee will say, "Don't do it, because if you do we have this information," and then they say: "Okay, we won't even release the name. We'll withdraw it. How about this one?" So a lot of our process is of a very informal nature and private.
Mr McGuinty: We do not possess a power of veto. Mr Grandmaître spoke of this earlier. Can you describe any advantage or disadvantages associated with the power of veto, given our system here?
Dr Fisher: In your system, and you can elaborate on it much more than I know, you really put the responsibility on the executive branch and the ministries for conducting government, which is not our system in the United States. On something like administration, how well a program is running, say, it is not unusual for not just the executive branch to be involved but certainly the committees of Congress to be involved and for the courts to be involved. Our accountability is dispersed a great deal, which is theoretically not supposed to be the case with you.
Mr McGuinty: Just touching on the theory, then, what is the theory behind your committees having the authority to effectively prevent an appointment?
Dr Fisher: Actually, at the constitutional convention, which took five months, for the first four months they had the power to nominate in the US Senate 100%, no role for the President. Then, for various reasons, at the end they decided to get the President involved in nominations. So that was a late addition. The theory was that the President would be a good person to send up the names because he would have his reputation at stake and he would only send up the best names, but he would not know everyone and maybe he would make mistakes so there ought to be a check on that, and so the Senate would be able to block unsavoury nominations.
Mr McGuinty: I am just going to ask you one or two more questions and then I am going to stop so that my fellow committee members can ask, but if time permits I will have more later.
Are there any restrictions in terms of the kinds of questions that can be asked of persons appearing before the committee, particularly the intended appointees?
Dr Fisher: With executive branch nominees, no restrictions other than fairly obvious ones about private matters that seem to have no relationship to public office. When you get to the judiciary, there are some restrictions. Obviously, you would not want to ask a judge how he would decide a particular case, that he would prejudge. There are some questions that would be out of bounds.
Mr McGuinty: I thought I read of an important case in the States. Maybe this never appeared, in fact, before the committee, but it was an intended judicial appointment and there was some question as to whether this individual had smoked marijuana in the past. Would that be a legitimate question had that person appeared before the committee?
Dr Fisher: Yes, you are probably referring to Douglas Ginsburg. After Judge Bork was defeated, President Reagan nominated Ginsburg, who had served one year on the federal appellate DC circuit. It was brought out within four or five days that as a law professor he had smoked marijuana and some evidence that never gelled as to whether he might have even been trading and circulating. By the ninth day his name was withdrawn. This was from an administration which had made war on drugs and where the First Lady said, "Just say no." Had that name gone forward, had it not been withdrawn, that would have been an appropriate question, because this was not someone who did that at age 15 or 16; he did it as a law professor. It would have been appropriate. They knew it would have been an issue, and the pressure to withdraw the name did not come from liberals, who would have been the opponents; it came from conservatives who did not want to be embarrassed.
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Mr McGuinty: I wonder if you might comment on our inability here to call witnesses to appear before us who might comment or lend some insight into an intended appointee's -- how do you see that? Any comments generally?
Dr Fisher: There is one thing I would like to understand a little better. As I understand it, you could have an intended appointment come up and the committee could vote unanimously against and the person would still serve. I wonder about the dynamics of that. Obviously, there is a cloud over that person, but maybe the unfavourable vote would be a warning that, "The reason we voted that way is because of what you've done. Make sure you don't do it in office." There might be some pluses and negatives on the vote. It makes you, without calling other witnesses, more dependent on the executive branch as to what information you receive, but that is true in a parliamentary system across the board, not just on appointments but legislation and budgets. So nothing new about that. It is so new for you, I suspect it will be something that will develop and you will find out whether you want to adjust that as you go along, whether it is serving the purpose you need.
Ms Haslam: I am not a student of the American political system, so I would like to ask some questions to clarify some of the things I wanted to know.
You said you appoint a great number of people on many small boards, large boards and in a tiered situation. Does everyone appear before a committee? You said some appointments are made automatically or by staff, so some people never ever get called before a committee.
Dr Fisher: Correct.
Ms Haslam: Okay. It just depends on the person and the committee.
Dr Fisher: I think it depends on the slot. If it is a policymaking position, where the person would have discretion in judgement, the committee would want to make sure that person understands the programs and the statutory objectives.
Ms Haslam: In that case, are there any applications for these jobs or are they all chosen and picked and called upon to serve? Are there applications for any of these positions?
Dr Fisher: Well, let me give you one thing specific and see if it helps. Unlike your committee, the Senate committees will have a questionnaire, a lot of the questionnaire having to do with financial background of the nominee, and that has to be filled out by the person before the person appears before the committee. You will see that in the committee rules I will give you.
Ms Haslam: Yes, they fill out a form for financial information, but how do they get to that position in the first place? Did they fill out an application form? Did they call and say, "I am interested in serving on this particular committee"? Was there an application process? What was the search process?
Dr Fisher: How did we recruit these people?
Ms Haslam: Yes. And can somebody actually apply for any of those positions -- beekeeper or gatekeeper or whatever?
Dr Fisher: Normally, it is not a position where these jobs are posted somewhere and people apply.
Ms Haslam: But could they?
Dr Fisher: Not for these. We are talking about major positions. How does the recruitment work? Just focus on one area like federal judges. Although the name will come from the President, it is not unusual for the name actually to come from a US senator from that state. Say it is a district judge, a trial judge; it is not unusual for the senator to feel very strongly: "That's my state. He's going to be in my state, and I want this person."
Then he has got to get the support of the executive branch, "Yes, that person's qualified and we'll back him," or, "No, that's not the person we want, give us something else." Sometimes the initiative comes from outside the executive branch 100%, and we will see in American newspaper headlines, "Senator Warner Nominates Two Judges." We know that constitutionally he does not do it, but practically he does.
Ms Haslam: So in other words, you do not ever have two people vying for one job, where the committee has to choose between the two.
Dr Fisher: Never that. No, we would never have that situation. We have people vie for jobs. We have a lot of people who would like to be Secretary of State and Secretary of Defense, and that battle is all done before a name is announced for committee action.
Ms Haslam: So you review the person that is being nominated.
Dr Fisher: Just the one name comes forward.
Mr Bradley: I am interested in a couple of things, first of all, in the amount of staff that is available to you, particularly as it relates to conflict of interest. If one wanted, I suppose individual members of the Senate could use his or her own staff to do some investigation on people. If this committee had a person coming before it, I would have a hard time picking out a conflict unless I knew something about the person initially or unless intuition told me that person might just have a conflict in one area or another. How much of the committee staff time is spent on investigating the potential conflicts of interest of potential appointees?
Dr Fisher: A great deal. This has been a focus, particularly in the last 20 years, where for instance on some of our independent commissions, a commission on interstate commerce, it would become obvious after a while that the commissioners are all, say, of a pro-industry nature: that is where they have done their work, that has been their bias and it is not a body that can, in a balanced way, perform its duties. I will leave this with you. It is from the committee on labour and human resources rules. It says:
"Presidential nominees shall submit a statement of their background and financial interest, including the financial interest of their spouse and children living in their household, on a form approved by the committee which shall be sworn to as to its completeness and accuracy. That is to include information relating to employment, education and background of the nominee relating to the position to which the individual is nominated, information relating to financial and other background of the nominee."
Mr Bradley: Is that information for the public record?
Dr Fisher: This would be public record, yes. They are very concerned about people in the executive branch having a conflict of interest that prevents them from carrying out statutory missions.
Mr Bradley: Does this in any way, in your view, limit the number of people who are prepared to become nominees? In our system, if I were to suggest that the person would -- not that the committee can do that at this time nor is the government proposing this -- but if I were to suggest to this committee that we should adopt a rule that said that a person coming before the committee must file a financial statement, I suspect this committee would not accept that.
I know your system is much more wide-open. In fact, your politicians must file statements which are much more extensive than the statements we must file as members of the Legislature or members of our cabinet. Does that tend to be a limiting factor on the quality of candidates and the quantity of candidates coming up for potential appointment?
Dr Fisher: I think it is a factor, although I would qualify. A lot of positions remain vacant for a while and the department says, "We need this," and, "Why can't you fill it?" and the White House will say, "We're trying to fill it but we run into people," as you suggest, who say: "I don't want to go through this. I don't want my finances exposed." But I do not think overall it has had too much of an effect. We do not have positions that go wanting. There are always good candidates to fill them.
On a trip to Bulgaria we had one federal judge and three state judges as part of the delegation, and the federal judge said that the information he had to submit was about four inches high. That is what the executive branch and the committees and the bar association -- it is vetted by the bar associations as well. They have a very influential role in the appointment process. So a lot of information is required today and if anyone feels uncomfortable about it, of course that person is not a candidate.
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Mr Bradley: To turn to another aspect, has the experience that you have had been that the allowance or permitted appearance of commenters been a negative or a positive factor? For instance, I will pick one area where I am particularly interested, the director of the Environmental Protection Agency. Presumably, if he were to come before the Senate, if that were one to come before the Senate, in theory, you would likely want to have members of environment groups, the Sierra Club or someone, come forward and say, "Yes, in that case Sierra Club would probably be favourable." But Sierra Club and Greenpeace or whatever may comment and there may be people in industry who may want to make comment. Has that proved to be useful or has that been extensively misused to discredit an individual for political or other purposes?
Dr Fisher: I think it is generally useful and usually neutralizes itself because of the bipartisan nature of most committees -- all committees actually. The people you would have testifying would be across the board and you would have enough on one side as on the other and the committees feel better because their resources are better than yours but they still, in terms of the time pressures, do not feel like they can always do the greatest job. They feel that it is better to have the record full even if some fringe groups may be called to testify. They have their place and it is part of the hearing record.
Mr Bradley: Again, I find that rather intriguing that you would allow that because I would think that could be a very useful tool in certain circumstances. Again, we are limited by time considerably and the massive job there is there potentially to review the various appointments, but I would think in some senior appointments, for instance, that it would be useful to have various groups make comment or at least a cross-section of those groups make comment to inform the committee of their views on that. The other part that I am interested in, did I hear you say that you have in fact unlimited amount of time to consider the appointment?
Dr Fisher: There is certainly no deadline and it can go on for quite a while. If the President sends up a name for the US Supreme Court, you have nine people and you are down to eight, there is a time pressure. If the name of Bork comes up on 7 July and the first full committee hearing is 15 September, the executive branch complains about that, "What's the delay?" Well, there was a lot of work for Bork, very voluminous, but there was still pressure on the committee. The committee does not like the Supreme Court to be short a person, so it operates under a certain deadline as well.
Mr Bradley: I again find it intriguing that your Senate is able to review judicial appointments. This committee does not have the right to review judicial appointments, as I recall, and there are provincial appointments that can take place as well. We, as you know, elect no judges here. My reference to defeating them is that they are often defeated candidates. So we defeat judges and you elect them. It is a little different system. Well, that is starting to change a bit.
In camera, what about questions of a personal nature, questions which could be potentially embarrassing? Do your committees go in camera to ask those or are those questions completely forbidden?
Dr Fisher: No, generally the hearings are open and generally floor debates are open, but at the floor level and committee level there are procedures where you can close if you think the information is, say, national security, top secret and you have to go into executive session. You can do that and you can do that in committee as well. So the presumption is that it will be public unless there are stated reasons for private hearings.
Mr Bradley: In your observation of the system, recognizing that our parliamentary system is significantly different from your system, which has a separation of the executive and the legislative branches, in your observation of it, and I recognize it is going to depend on the issue, do the appointments generally receive support or lack of support along partisan lines or not?
Dr Fisher: Taking something specific like the US Supreme Court, 90% or 95% of them will be along partisan lines. Republican candidates pick Republicans and so forth, the Democrats the same.
Mr Bradley: I guess I will restate it, because I understand that is going to happen, that the party in power is going to nominate whomever it sees fit and it is very likely that most of the nominees are going to be those that are acceptable to the party in power, to say the least. My point is in the committee system itself.
Where we have a committee sitting here in our system, the government rises or falls, as you know, on how the members of the governing party vote. In your system that is not the case, since they are separated. In your experience, has the committee of the Senate itself approved along partisan lines or is it more individual philosophical lines that seem to rule when approving or not approving appointments of the President?
Dr Fisher: Well, say with President Bush in office and the Senate being Democratic, the Senate will recognize that the names coming up will be Republican people and they will look for those who are sympathetic with the programs that have been enacted and they do not want enemies of programs, so it is more philosophical and programmatic and not partisan.
I should mention that, probably different from you, say there are five people on a commission, then there will be statutes to say that no more than three shall be from one party and that will have to be observed. You will end up with three Democrats and two Republicans or vice versa. So there are some statutory requirements. It is not hard if you are a conservative Republican to find a Democrat who is very conservative, so there are ways to blunt that, but there are statutory limitations.
Mr Bradley: See, the observation would be that in our committee system, in this Legislature and the federal Parliament, the votes that take place would largely be on party lines as opposed to individuals voting within the committee. Unless this new Parliament is different than the last 100 years, that is likely to be the case. I take it from what you are saying that is not necessarily the case, in fact is often not the case in the US Congress.
Dr Fisher: Yes, I think it is fairly rare. It will come up but quite rarely.
The Chair: Doctor, you mentioned the committee and you said there are about 20 committees in the US Senate and 100 senators, and some of them are in leadership roles so not all of them, I assume, are available for committee responsibilities. Then you mentioned about 15 to 20 senators per committee, which means that roughly you are looking at about four to five committees which each senator has to serve on.
Dr Fisher: That is true.
The Chair: I am just curious about the workload. You talk about significant numbers subject to review. Do you have a ballpark figure in respect to how many appointees would be reviewed by the Senate in a year?
Dr Fisher: No, but when I get back, I will certainly collect that information, magnitudes and statistics, and mail that back up to you.
The Chair: We have been discussing the approach and responsibilities of this committee and the fact that there are 11 standing committees in the Legislature and we have about 100 members approximately as well available to serve on committees when you discount cabinet and the Speaker and a number of others. I think most of us, especially in the parliamentary system with minority parties, the opposition parties with the smaller numbers, find the workloads fairly heavy right now. I am trying to contrast it with the workload that individual senators must face when they are also looking at reams of legislation as well as significant numbers of appointees being reviewed on an annual basis. If you could provide us with that information, it would be quite helpful.
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Dr Fisher: The situation is made even worse by the fact that it is not the 20 committees, it is the fact that each committee has subcommittees and members have to serve on those. Four or five, I guess, would be manageable, but by the time they serve, each committee could have 10 or 12 subcommittees, so it multiplies.
Ms Haslam: I maybe misunderstood a comment and I want a clarification. When you talk about three Democrats and two Republicans on a committee, are you talking about appointments to committees, that they would be appointed on a partisan basis?
Dr Fisher: Yes. When I mentioned three from one party and two from another, that would be for an executive commission by statute, say the Interstate Commerce Commission.
Ms Haslam: And it is done on a partisan basis, where it is party politics that puts them on that committee, not their abilities?
Dr Fisher: Well, the independent commissions for us are unusual. They did not come in the United States until around the 1880s. Up until then, you basically had singleheaded executive departments. Somewhere in the 1880s it got started and in the 20th century we got executive commissions, multimember, 5 people, 7 people, 9 people, 11 people. Since these were supposed to be long-term, nonpartisan, not directly as agents of the President, you would have statutory requirements. If there are nine people on the commission, not more than five could be of one party.
That is what I was referring to, some effort to have partisan balance and neutrality on the administration of those programs, to give some continuity so that they would not be yanked back and forth with each election. There would be longer terms as well. There could be terms of 7, 9, 11 years for those commissions.
Ms Haslam: The other thing which brought me back, a lot of times you wanted someone on the committee that followed the policies of the party in power. You talked about a commitment to the policy, that the Senate wanted someone who would follow the policies of the Senate.
Dr Fisher: Not the policy of the Senate but the policy as established by statute. It often is the case where bills under one administration will be submitted to a President, enacted into law, and the next administration comes along and they do not like that. Well, the option is to repeal the statute or revise the program; otherwise that is the law of the land and it is supposed to be carried out. Instead though, through the appointment process, they will often try and pick people who are basically enemies of the program, and that is what the Senate and the House will try to avoid, to make sure that person is in sympathy with the objectives of the statute.
Mr McGuinty: Dr Fisher, what powers do these committees have to compel answers from witnesses who appear before them?
Dr Fisher: If there is not co-operation, first of all, they have a subpoena power. You can subpoena persons, you can subpoena documents, and if a person declines to do that, he can be brought into court and penalized. Then beyond the subpoena power is the contempt power. Most of these, by the way, are non-constitutional powers. These are powers that the Congress has acquired to protect its prerogatives.
The subpoena power functions at the committee level; the contempt power operates at the full House or the full Senate level, where you would take a vote and say that this particular executive official has conducted himself or herself in such a way that is in contempt of Congress. Under inherent powers, Congress could punish that person directly. They could take that person, after the vote, and put the person in a jail that still exists in the capital. They have not done that for a while. The process today is a statutory one where they would go into the courts and the federal courts could review that person. The person could be fined and jailed for being in contempt of Congress.
Those are the two principal punishments, subpoena power and contempt.
Mr McGuinty: Practically speaking, if a witness was to refuse to answer a question, what would happen?
Dr Fisher: It depends. There are certainly restrictions on committees. Most of the Bill of Rights would apply to committee activities. They cannot use committee hearings to embarrass someone for ideas he has or associations he has.
Mr McGuinty: I am premising my question on the assumption that the question had been ruled in order, it was legitimate.
Dr Fisher: If the question of a committee is pertinent and the person refuses, then he can be subject to the processes I described. The person can decline to testify under the fifth amendment; does not want to incriminate himself or herself and there can be a refusal to testify.
Mr McGuinty: I think you are still missing the point. Maybe I am not presenting it properly but, practically speaking, what happens? Does that mean that effectively this person is no longer going to get this appointment if he refuses to answer a question?
Dr Fisher: Certainly if you are a nominee and you are asked a question and you say, "I decline on the fifth amendment; that will incriminate me," that is the end of the day for you. But I am thinking of a more recent case. You probably know about it, the person who used to be head of the housing agency, Samuel Pierce. After he was out of office he was asked to testify. He testified for a while and then after a while he took the fifth amendment and the matter is now in the hands of what we call an independent counsel, who is investigating for possible prosecution. But to behave that way while your nomination is pending would be a death sentence.
Mr McGuinty: Dr Fisher, you have described the American system for reviewing executive appointments. Can you tell us now of some of the traditional concerns or complaints that have been made about that system so that we will be made aware of those too?
Dr Fisher: Traditional complaints about it? I guess from the executive side is that it takes too long and it embarrasses people too much and it makes the recruitment process too difficult, but those objections have never had any bearing on how the Senate performs. It feels that those are the prerogatives and that is necessary, and sometimes it takes time.
Mr McGuinty: Is there any movement, traditional or otherwise, within the Senate to somehow increase its powers with respect to this review process?
Dr Fisher: I do not think so now. I think the Senate in the 1970s concluded it had done a poor job, it had been too much of a rubber stamp, and it beefed up its operations and its staffing and its forms required of nominees. So I do not think there is any debate today about strengthening it any more.
Mr Waters: On the question of what is an appropriate question, there has been some discussion as to what people should have to answer. Who decides what is an appropriate question and who does not? Is there a set of guidelines that you follow for that?
Dr Fisher: On Senate committees, on the positions we are talking about, the big ones, I think there would be a lot of negotiation ahead of time as to, "We will have these hearings and these are the kind of questions," and the person would know about it ahead of time, in fact would have to, because he or she is a new person and does not know it. So they would have to have some idea of the nature of the hearings and the questions, and often they would have three, four, five people with them to help on technical details. So they would know about the pertinency and the relevancy of the questions ahead of time.
Mr Waters: Then, a person sitting on the committee, just out of the blue, could not just fire any question he wanted and that would all of a sudden become an appropriate question. It would have to be decided by all parties before.
Dr Fisher: No. Each senator on the committee is a free agent. If you did it out of the blue and it was not appropriate, you would discredit yourself. Some of the questions, by the nature of it, are generally within bounds and appropriate.
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Mr Waters: In the US system, all of these appointments and these hearings are done by senators.
Dr Fisher: By the senators.
Mr Waters: They are not done by the members of the House.
Dr Fisher: The House of Representatives formally has no role in the nomination process.
Mr Waters: Okay. In some ways we are comparing apples and oranges, but it is nice to know your system. We are not a Senate committee here. We are more like a -- well, we are provincial instead of federal.
Dr Fisher: Right.
Mr Waters: Legislature.
Dr Fisher: The power for us comes directly from the Constitution, which gives the Senate the advise and consent role on nominations. The House has no role, but over time the House informally can have some participation on nominations. It would not be unusual, for instance, for the Senate to have a hearing and invite someone from the House to testify either for or against the nominee. That can happen.
Mr Perruzza: Mr Fisher, I would just like to have some of your thoughts on the two systems of government, primarily the parliamentary system versus the, I guess you would call it, congressional system of the United States. What are some of the pitfalls that are inherent in both, and in your view, which of the two is superior in terms of delivering good, effective, efficient government?
Mr McGuinty: In two minutes.
Dr Fisher: Actually, there have been a lot of academics in the United States who say the separation-of-powers system is anachronistic. It might have made some sense in the 18th century; it does not make any sense in the 20th century. We need to put more power in the executive branch. The United States should adopt the parliamentary model. They quickly got the idea that "parliamentary" was an alien term, so they dropped that and instead began to put in words like "accountability," "responsibility." "Coherence" seems to be a word they like a lot.
I went to Holland in 1985 for three weeks, but my main mission there was to see how much accountability you get in that parliamentary system. Of course, it is a multiparty system in Holland and my impression was that you did not get accountability and responsibility and coherence in that parliamentary system.
So my feeling is on a parliamentary system, if you have two parties and not more than two parties, I guess you get accountability that you would not get in the United States Senate. Otherwise, if it is more than two, you need coalitions. You never know. In Holland they had a huge scandal where they tried to pin it on a minister and the minister said, "I'm responsible for that program, but when the scandal started it was in the previous government." Well, he had been in the previous government but he still would not take responsibility. So I think, as a generalization, a parliamentary system does not make any sense until you ask if it is two parties or more than two, and how many pure two-party systems do we have?
Mr Perruzza: Okay then, specifically ours, where we have three parties but one party gets to govern because it has a majority of the seats.
Dr Fisher: Where you would have one party able to govern? You are the experts on that, as to how much accountability you get as a result. The only other system I have seen, I guess, is New Zealand, which has a system where you can put all the responsibility on one party. I think even if you have one party that had a clear majority and problems came up and that party had newly-gained power and had not been in power two or three years ago, I think you could run into the problem I gave you on Holland where they could say, "Yes, the problem came to fruition under us, but it was under the opposition that it actually began." So you may still have problems on fixing accountability but you know your system and make judgements for yourself.
Mr Perruzza: So in essence what you are saying is that perhaps the American federal system holds its members, or its members would otherwise be, more accountable than members in a parliamentary system.
Dr Fisher: I think it is very hard to hold an individual member of Congress responsible, say, for budget deficits. Say, "I am against them but everyone else has been irresponsible." Very hard to hold individual presidents responsible. They say it is the fault of Congress or the court. My impression is that the value that supports our system does not have anything to do with accountability or responsibility but has more to do with participation. People like the system where if you get blocked out in one branch there is an opportunity to make headway somewhere else. No doors are closed. So that is the value that supports separation of powers, just opportunity for a lot of people in different levels to participate and have some say in government, even if it is not very accountable.
Mr Perruzza: Okay. You talked about enormous numbers of staff that are attached to both the committees and the members themselves. In your view, in that way is government more efficient, when the agencies that process information and make decisions are better staffed than those that have smaller staffing numbers?
Dr Fisher: Yes. I would say the US Congress has reached a point where too much staff hurts the institution, even though I am part of the staff. I would say it hurts it in the sense that the more staff you have, the more the temptation for members to delegate a lot of things to staff to iron out and the less face-to-face contact there is from one member of Congress to another. And when that communication is reduced, I think government suffers. I think members of Congress delegate too many policymaking decisions to staffs that are not able to concentrate as well as they ought to, not just to hammer out technical details but political tradeoffs. That takes time. The bigger the staff, I think, the harder it is for it to do that.
Mr Perruzza: Well, that actually was going to lead into my next question. How far removed do you think the individual members are from both the actual decision-making and their constituency and constituents, in your view?
Dr Fisher: Oh, I think most members, in order to stay elected, keep up good contacts with constituents and get back quite frequently and spend a lot of time on that, so I think they do a good job there. But the task, if you ever look at what they have to do in committee and subcommittee and what they have to do on the floor and just read a couple of issues of the Congressional Record Floor Debates for a few days, it is overwhelming for anyone to do it and to do it well. So constituency, I think, with communications and travel and video and everything else, newsletters, a lot is done in that area.
I think Congress increased its staff beginning in the early 1970s. I think it had to do so, which is unfortunate because it was not able to get from the executive branch accurate information. I came to CRS in 1970 and would have friends in the executive branch who would say, "Do you want the official line or do you want the facts?" That was their way of alerting me how much deception was going on. So I think it hurts government where after a while the legislative branch cannot trust in the facts and figures from the agencies and we start to create duplicate agencies, which is what we have done. The reason Congress created a congressional budget office is it felt it could not trust the office of management and budget. So you end up with duplicate numbers, duplicate budgets and a lot of confusion.
Mr Perruzza: Yes, which actually leads me into my next question, and it has to do in members, in the turnover rates and ratios. And this does not have to do with the president but it relates to Congress and, to some degree, to the Senate in the one-third turnover every two-year and six-year cycle. How many members actually get voted out and what is the average lifespan of a House member and a Senate member? Do you know?
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Dr Fisher: I think we started on the idea of citizen legislator, someone who would come in for a few years and then go out to private life. Somewhere in the 20th century we developed the notion of a career legislator, and he would be in for 20, 30 years or more. There is criticism that there is not enough turnover, that the system favours incumbents. I do not think that is true. I think most incumbents do quite a good job and that is why they stay in and that is why they are re-elected.
Mr Jackson: According to what we read, it has a lot to do with their social life.
The Chair: Mr Perruzza, have you finished?
Mr Perruzza: No. My last question, and just to get a little bit better understanding, I guess, of some of the pitfalls of your system as well, given that our system of Parliament works considerably different from yours and taking into account some of the comments or some of the information that has been generated by some of the members here today about veto powers at the committee and so on and the decision-making authority of the Senate committees, if our committee were given, in your opinion, similar powers, how would that impact on the idea of Parliament being supreme and the party or the Prime Minister or Premier in power really being the individual who is held accountable for all government and the delivery of government in a province? How would the authority here impact at that level there?
Dr Fisher: Well, that is why I think even what you have now, as modest as it is, is of interest, because theoretically I would think you would argue that in your system the executive branch should have total control over appointments in order to make the ministries accountable, and yet to some extent it seems to be partly shared through this vetting process. I get a head shaking there, so we get some elaboration on that. But that would strike me -- theoretically, if that is where you want your accountability, in the ministry -- that they should have full control over appointment and removal, and that is not the system that we have in the United States.
If that is your theory, you know, why and how would the legislative committees get involved even to the extent that you are? What is the reason for that?
Mr Perruzza: So essentially what you are saying is that given the system that we have and the way the, let's call them, accountability levels work, what we have here today is relatively good in that in the parliamentary system, some of the members who are otherwise in opposition are given an opportunity to review directly government appointments or government nominees.
Dr Fisher: That there is an opportunity to express opposition, even though the control remains with the executive, right? That is the way the system works.
Mr Perruzza: Essentially the control remains with the executive but there is the opportunity there, yes.
Dr Fisher: Opportunity to embarrass or to expose.
Mr Perruzza: Yes.
Dr Fisher: You know, we talk about the theory of your system and the theory of my system. At least in the United States we do have theories and we do have grand schemes, but we have no problem in muddying it up with overlapping. We do not really have a separation of powers, we have overlapping of powers, and we never intended that powers be strictly separated, which confuses the US Supreme Court. One year they will say, "The powers have to be totally separate," and two years later they say, "Don't worry about overlapping."
We are not theoreticians. We run into situations where it does not seem to work very well and we try something new, and someone says that does not fit with theory, and it really does not matter. The independent council that was upheld by the Supreme Court in 1988 was a very odd system, where Congress did not trust the executive branch to investigate itself at the top level, so the appointment process of the independent council was given to federal judges. A very strange system, but it was meant to deal with a situation that no one else had a better way of doing. We violate the theory all the time.
Mr McLean: How many appointments would be made in the course of a year?
Dr Fisher: I am going to give you some statistics when I get back. I think we are talking in the thousands, in terms of nominees considered by committees; then, of course, tens of thousands of routine appointments in the military beyond that. I will give the committee those numbers.
Mr McLean: What would be the average length of an appointment, or are they just as long as until the next election?
Dr Fisher: You would go from lifetime appointments of the federal judges to fixed-term appointments -- I think the Federal Reserve Board is a fixed term of about nine years; the Comptroller General is 15 years -- down to situations where there is no term at all, like someone who comes in as Secretary of Defense and wants to leave within nine months, 14 months, that is the end of it, no term. So from no term up to fixed terms up to life terms.
Mr McLean: So they vary.
Mr Bradley: Would your federal government, if it were asked by the Senate committee, be able to provide a list of all the potential appointments it would be making? Would it be able to provide that list, let's say, if the committee were interested in all the appointments the federal government was to make, and then a separate list of all the appointments that the federal government was making that were not under the control of the Senate committee? Would that be a list that would be provided to a committee upon request of that committee?
Dr Fisher: Yes. There has been something in Washington DC called the plum book. These are positions people would like to have. It is a fairly long document. The individual offices are identified that will be required to be filled and which ones require Senate action. It is all public. There is no confusion about what is available.
Mr Bradley: It is wonderful to hear it can be done so easily.
Ms Haslam: How long did it take to do that?
Dr Fisher: I do not know how long the plum book has been around, but I suppose before that was there, there was public information on positions. Nothing has ever been secret about it.
Ms Haslam: Are those just positions that go through committee? I am sorry; supplementary.
Mr Bradley: I am quite happy to let Ms Haslam present this point of view.
Ms Haslam: No, no. It is not a point of view. I have another question. If you will ask it, that would be --
Mr Bradley: Our guest should be aware that such a request has been made by this committee. You may not be aware that such a request has been made by this committee and denied by the majority of the committee, which is the government majority in the committee, in the form it was asked. The only reason I asked was that I thought perhaps you might have some special miracle system in the United States to produce this, some technical advantage we do not have to produce it here in Canada. The reasons would be different. We have had a difficult time getting such a list, and I know your system in the US is one where there is openness.
Dr Fisher: Since you bring it up, let me just make a specific point as to how the systems differ. When William Rehnquist was up to be Chief Justice -- he had been associate justice for years; he was up to be Chief Justice -- the Senate committee on judiciary wanted some documents he had written when he was in the Justice department, when he was in the Office of Legal Counsel. These were memos of legal analysis, which were considered internal documents, part of the policy-making process, and were considered inappropriate to give to Congress, at which point -- which is different from your system -- the Senate judiciary committee said, "Well, then, we're not going to move on this." So the executive branch said, "Well, maybe we'll make them available to you." That kind of leverage is available in the United States, and it is not available in parliamentary systems.
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Mr Bradley: Nice leverage to have when one sits in opposition, no doubt.
I would like to pursue very briefly something further on the conflict of interest. When your committees are dealing with conflict of interest -- we recognize it is an individual interpretation of what conflict of interest means, a definition one can bring about -- there are two conflicts of interest.
There is one which is probably a pecuniary conflict of interest or a personal conflict of interest, where, if you were appearing before a committee as an appointee, one would say that by having this position you would be able to gain in your personal finances from it because of your knowledge, and there may not be provisions there that you divest yourself. Of course, in our system you would not be required to tell what your financial holdings were if you were on an agency, board or commission, to my knowledge, at least. Members of the Legislature must, to a certain extent.
Then there is the one where the conflict of interest would be that you have always had a bias in favour of corporations or in favour of one specific group or organization. That might be seen as another kind of conflict of interest, a philosophical conflict of interest, if there is such a thing.
What conflicts of interest does the Senate committee dwell on?
Dr Fisher: Mostly the former, the financial conflicts of interest, where, in your office, you are in a position to make decisions as an agency head that will benefit your portfolio, so you would have to divest yourself. Secretary of State Baker had to do that, not as a result of congressional pressure but because White House counsel Boyden Gray had made some decisions as to what Baker would have to do. So the pressure comes from within the executive branch on screening what your holdings are, how they relate to your office.
Then we also have -- I do not know if you have it -- the revolving door problem, where someone comes into government and as a result of expertise, say, in the Defense department, will go out and quickly get a job in the defense industry. There have been efforts to slow down the door a little bit, that you would not be able to do that for a year or some interim period. It is not a very successful operation. We do not want to discourage people from taking government so that they cannot go back to private enterprise. We have not figured out a solution for that.
Mr Bradley: I must tell you that still exists here. There are certain requirements, but they do not really limit people from profiting from their expertise or, in a much more sinister fashion, I suppose, profiting from their connections more than their expertise. Expertise most objective people would probably consider to be legitimate; to profit by expertise, in terms of that experience. The real concern comes when it is profiting by connections, the ability to walk in the door and talk to the right people as opposed to standing in the same line that everyone else must stand in.
Dr Fisher: On connections, we have the rule now that if you have been in government you have to wait for a year or something like that before you can lobby government again. But it is okay to ask for information from government, so how to keep those two separate spawns confusion.
Ms Haslam: In our library, we have three large binders that cover all agencies, boards and commissions and the people on them and their appointment times. Would you make available a list of all of those people who are appointed who were not coming before a committee?
Mr Bradley: If requested by the committee.
Ms Haslam: If requested by the committee. Within your bureaucracy, or jobs, not appointments.
Dr Fisher: Those are made available and they are scrutinized a good deal. The Senate feels that if it acts on nominees it has some chance through communication to have an influence. They are always worried about too many positions in the executive branch going to people who escape the confirmation route, and they recognize that the President and secretaries of departments need some people like that, purely political. But those names are available. It gets a little confusing.
Ms Haslam: How long would it take to put that together?
Dr Fisher: I think it is always available.
Ms Haslam: As an ongoing --
Dr Fisher: Yes, it has to be ongoing because these people move around a great deal. I think the printouts in various departments of who is on board and who is confirmed and who is not is always available.
Mr Bradley: It is an interesting system, particularly when one can watch on at least one network the proceedings of Senate committees from time to time. The last time I was in Washington the breakthrough had been that the Senate was on radio. I take it that now you have full televising of the Senate and the House, since I saw votes taking place on CNN in the House.
Dr Fisher: CNN is enormously successful. People are stunned. Of course, I watch committee hearings and floor debates. I do not think they are always that interesting, but we have millions and millions of Americans who will sit there from morning until night watching committee hearings and floor debates. This attracted a lot of citizens' support and interest in watching their government.
Mr Bradley: It is interesting for all of us that our legislative bodies have for so many years been able to -- I will not say hide behind closed doors, but have been behind closed doors, where the public has access through the news media or access through a personal visit to a state Legislature or a state Senate or the national Congress, either branch of national Congress, yet has not had that easy access until rather recently through the medium of television.
Your observation is one that I would say could be sustained in this province. Legislators are sometimes -- although I suppose we should not be -- shocked by the fact that people will tell us how long they will sit and watch legislative committees or the proceedings of the House on a daily basis.
I recall one day going in. I had spilled some ink on a jacket like this, and I had a red sweater underneath. I took it off and I appeared without a coat on in the House, and a gentleman from Scarborough, which is part of Metropolitan Toronto, was quick to phone my office to point out my lack of decorum; just an indication that not only do they watch the substance but watch, let's say, the less than substance, the images that are presented in the House.
It is an observation. I think it is good for the system. I find the American system interesting as well, to be able to access it through CNN in this particular case, which has taken upon itself the duty, if it sees it as that -- or it must have a market to have taken it upon itself -- to televise on an ongoing basis what is going on.
I am diverging a bit, but the Chairman is a very tolerant man. I have heard that people will be critical of networks such as CNN for perhaps not having the experts to analyse and, in some cases, overanalyse what is going on, and will simply show you what is going on. There is probably a place for both in your system and ours. It allows the public to see everything that is happening instead of simply what a news person has said has happened and it can be done without interpretation.
I admire the openness of the American system. We in Canada often look upon our own system, as all countries do, as probably being superior. When one looks at some aspects of the American system, particularly those related to freedom of information and disclosure, one can see that your system is somewhat ahead of many other democracies in terms of disclosure of information and freedom of information. In the long run, that probably works best for --
Dr Fisher: Is that a question of theory? When we had the Iran-Contra investigation, I was part of the committee. I think it is true to say that no other country would have ever provided the public as much information about what had been done in Honduras, Nicaragua and so forth. Some people were critical of that as too much information.
But the theory there, I think, was that even if it would affect prosecution -- which it has done, has complicated it -- this is government of the people and they have a right to know what happened even if there is some cost and embarrassment. I do not know about here, but in some parliamentary systems my impression is that the theory is that the sovereign power is not the people but it is the government, and if the government wants to tell the people they have no right to information, it may do so. Is that the case? Do you see a difference of theory? I think in the United States we feel that the people have a right to know, and the Freedom of Information Act is a reflection. We do not have an official secrets act, which is the case in some parliamentary governments. Do you see any basic point of view in terms of who is sovereign, the people in one case and the executive branch in another?
Mr Bradley: There is probably an evolution taking place. I can only speak for this country. My own personal observation would be that there is an evolution taking place toward freedom of information that perhaps was not there in years gone by. We have invoked certain acts in this country that Americans would not tolerate. I think of the War Measures Act, which was invoked in 1970 in this country -- it would be very difficult to invoke in the United States -- which severely restricted liberties of certain Canadians at that time. I would have guessed at that time that it would never be allowed in the United States to be invoked. In fact, it is semi-martial law in some ways; it certainly did take away some rights. It was very much supported in Canada at the time. Upon reflection, some have not been so supportive, but Canadians tended to be supportive of that at the time. I would suspect that the Americans and the system you developed would not be so supportive of the --
Dr Fisher: But we try. Remember the Pentagon Papers. The executive branch tried to withhold publication of that and it became a Supreme Court case and it lost it. They try to elevate things to the national security level. Sometimes they succeed. Mostly, they do not. In fact, the person who was Solicitor General for the Pentagon Papers case, who warned the Supreme Court, "If this information is ever made public, there'll be lives lost," and so forth, two years ago wrote an article in the Washington Post saying there was no threat at all, that the danger was embarrassing the executive branch.
Mr Bradley: My suspicion is that within this committee, the committees of the Legislature -- the Chairman has been a member for a number of years -- we will see an evolution towards more freedom of information and sharing. There was great resistance to allowing cameras into the Legislature for a number of years, and finally we have them. We have everything being televised, virtually, at the present time; some committees, upon choice, and the House. My personal view would be that it is positive, and I think there is an evolution towards saying that the people are sovereign, but that is an evolution rather than a revolution taking place now.
Dr Fisher: We are moving now towards cameras in the US Supreme Court, which a lot of the justices have resisted. But I think it is going to come and it is going to be tried and experimented with. At the state level some judicial proceedings are televised, and I think it will come in the federal system.
The Chair: Thank you very much, Dr Fisher. As I said at the outset, we very much appreciate you travelling from Washington and being with us. Your contribution today will be helpful to us, when, I think some time early in the session in the House, we are going to be attempting to grapple with the issue of recommending to the Legislature a permanent standing order for this committee. Your contribution will be helpful in coming to grips with that, and the materials you can provide us with as well. Once again, on behalf of all members of the committee, thank you.
Dr Fisher: I will leave the documents I brought with me today, and when I get home I will collect a lot of statistics and other documents and mail them up to you. It has been a pleasure for me. Thank you very much.
The Chair: Great. Thank you.
Before members of the committee leave, I just want to remind you that our schedule indicates Monday's sitting starting at 2 o'clock in the afternoon, when we will be hearing from the Ontario Restaurant Association. We do have some holes in our agenda, which hopefully are going to be able to close shortly. I am asking the members of the subcommittee to stay briefly after the adjournment so we can firm up the schedule; if there are any significant changes, your offices will be contacted. We also have to review the order-in-council appointments for the Fair Tax Commission so we can recommend review of appointees provided and hopefully set some dates for those reviews to take place.
The committee adjourned at 1544.